Orissa High Court
Benudhar Das And Anr. vs Baburam Das And Ors. on 22 April, 1991
Equivalent citations: AIR1992ORI97, AIR 1992 ORISSA 97, (1991) 1 ORISSA LR 540 (1991) 71 CUT LT 834, (1991) 71 CUT LT 834
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. An interesting question relating to the power of the Court to examine witness while dealings with an application under Order 39, Rule 1 of the Code of Civil Procedure, 1908 (in short 'the Code') requires resolution.
2. By the impugned order the learned Subordinate Judge, Kendrapara held that such scope did not exist, which has brought two of the defendants before this Court. The resolution does not very much depend on the factual controversy.
3. The background in which the order was passed is that the plaintiffs who are opposite parties Nos. 1 to 3 in this revision application filed Title Suit No. 3 of 1990 in the Court of the Subordinate Judge, Kendrapara, praying for a decree to declare that title over the suit land, confirmation of possession and permanent injunction against four defendants (the two petitioners and opposite parties Nos. 4 and 5) and one Sachidananda Mohanty, defendant No. 5. They also filed an application under Order 39, Rules I and 2 of the Code praying for temporary injunction against the defendants 1 to 4. There was resistance to the application for temporary injunction; and the defendants filed an application to examine Sachidananda Mohanty (defendant No. 5).
According to the defendants 1 to 4, they have purchased the land by registered sale-deed dated 3-5-1988 from Sachidananda Mohanty, and the plaintiffs had got a sham sale deed executed by impersonation. Sachidananda Mohanty is not a party in the application for injunction. The prayer to examine the said Sachidananda Mohanty was refused by the learned Subordinate Judge on the ground that while dealing with an application under Order 39, Rules 1 and 2 of the Code, there was no scope for such examination and the application had to be disposed of on perusal of the petitioner and objection if any and on consideration of the documents if any filed by the parties.
4. The learned counsel for the petitioners submit: that it is apparent from the wide language used in Order 39, Rule 1 that it is open to the Court to permit examination of witnesses and the view of the learned Subordinate Judge is contrary to law.
The learned counsel for the contesting opposite parties, however, submits that there was no scope for such examination.
5. For resolution of the dispute, it is necessary to consider the scope and ambit of Rule 1 of Order 39. As the heading of the rule itself indicates, the circumstances in which temporary injunction may be granted are indicated in the rule. The Court has discretion to grant temporary injunction to restrain any act which endangers the property in dispute or where there is likelihood of acts being committed by the defendants with the intent to defraud the creditors, or where there is threat of dispossession by the defendants which would cause injury to the plaintiff. For making such order it has to be proved by affidavit or otherwise (underlining by me) that there is likelihood of such acts. The question, therefore, emerges is whether the expression 'or otherwise' includes examination of witnesses. An affidavit is not evidence in terms of Section 3 of the Evidence Act and can be used as evidence only if for sufficient reasons Court passes an order under Order 19, Rule 1 or 2 of the Code. (See AIR 1988 SC 1381 : Smt. Sudha Devi v. M.P. Narayanan), Order 19, Rule 1 of the Code empowers the Court to direct parties to prove any particular fact or facts by affidavit. All that the rule permits is that any particular fact or facts may be proved by affidavit, or as affidavit of any witness may be laid at the hearing and that too on such a condition as the Court thinks reasonable after it has permitted the same. (See AIR 1981 All 178, Smt. Anjula v. Milan Kumar) Order 19, Rule 2 permits filing of affidavit upon an application. However, the Court on the insistance of either party may direct attendance of the deponent for cross-examination. The question whether the deponent of an affidavit can be called for cross-examination in respect of an application under Order 39 of the Code came up for consideration of various High Courts. The Allahabad and the Andhra Pradesh High Courts held that such cross-examination is permissible and that Court has jurisdiction to summon the deponent for cross-examination either suo motu or when it comes to believe that the circumstances warrant such cross-examination. (See AIR 1975 All 398 : Abdul Hameed v. Mujeedul-Hasan, AIR 1981 Andh Pra 406; C. Srinivasa Rao v. K. Manohar Rao; and AIR 1983 Andh Pra 114 : In re Ali Bin Aifan). The contrary view has, however, been expressed by the Gujarat High Court in AIR 1968 Guj 198 Kanbi Mavji Bhimji v. Kanbi Manjibhai Abjibhai. The Andhra Pradesh High Court had earlier followed the Gujarat view as appears from AIR 1978 Andh Pra 103 : Saklabhaktula Tykunta v. Made Apalaswamy, but subsequently the said Court changed its view. This Court had also occasion to consider the question in Civil Revns. Nos. 537 and 544 of 1987 (Jaihind Lal Sao v. Jagdeo Prasad Sao) disposed of on 21-12-1987. It was held that the view expressed in the later decisions of the Andhra Pradesh High Court is correct. It was observed that if there are conflicting affidavits relating to question of fact, it is open to the Court to accept the prayer for cross-examination of the deponent. The view expressed in the said case was followed in Civil Revision No. 558 of 1986 (Swaruparani Adhikari v. Pantala Bairagi) disposed of on 8-8-1989. It is clear from a conspectus of the decisions referred to above that in appropriate cases the deponents of affidavits can be called for cross-examination.
6. The residual question is whether the witnesses in addition to deponents of affidavits can be examined to further the case of the parties and whether the expression 'or otherwise' encovers it. As indicated above, the order of temporary injunction can be passed on the Court's satisfaction about the existence of circumstances indicated in the rule. As a general rule, injunction is to be granted only when damage cannot be compensated sufficiently. (See Halsbury's Modern Equity, page 560). For that purpose circumstances necessitating grant of temporary injunction have to be proved by affidavit or otherwise. The Court has to be satisfied about their existence. The grant of temporary injunction is in exercise of a discretionary jurisdiction. Its primary concern is preservation of property in dispute till legal rights are ascertained. When an interim injunction is sought, the Court may have to examine whether the party seeking the assistance of the Court was at any time in lawful possession of the property and if it is so established, one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? For resolution of this dispute, it would not be certainly impermissible for the Court to consider evidence of the witnesses in addition to or in exclusion of affidavits and examination of the deponents thereof. It would depend on the nature of the dispute. There cannot be no hard and fast rule. The Court dealing with such an application has to decide the course to be adopted by it, keeping in mind the fact that the disposal of the application has to be in a summary manner.
The learned Subordinate Judge does not appear to have considered the application in the aforesaid background. His order is, therefore, set aside and the matter is remitted back to him to consider the desirability of examination of defendant No. 5, if it is in the interest of all concerned and for furtherance of the course of justice.
The Civil Revision is accordingly disposed of. No costs.