Andhra HC (Pre-Telangana)
Shetty Chandra Shekar And Ors. vs Neeti Ramulu And Ors. on 1 February, 2008
Equivalent citations: 2008(2)ALD709, 2008(2)ALT463, AIRONLINE 2008 AP 17
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. Aggrieved by the order dated 06.08.2007, passed by the Junior Civil Judge, Kodangal, Mahabubnagar District, allowing the petition in I.A. No. 54 of 2007 in I.A. No. 187 of 2006 in O.S. No. 62 of 2006, filed by the respondents under Order XIX, Rule 2 C.P.C. for the attendance of the deponent for cross-examination on his own affidavit, the petitioners filed this C.R.P.
2. The petitioners are the plaintiffs while the respondents are the defendants. It is the contention of the petitioners-plaintiffs that the Court below committed an error in allowing the present petition in I.A. No. 54 of 2007 filed by the respondents-defendants, and as such, it is liable to be set aside; while it is the contention of the respondents-defendants that the Court below in exercise of its discretion under Order XIX, Rule 2 C.P.C. has rightly allowed the I.A., the same being valid and in accordance with law, no interference is called for therewith, and the C.R.P. be dismissed.
3. Before adverting to the legal principle involved in this case, for better appreciation and adjudication of the matter in dispute, it is just and necessary, to refer to the relevant facts.
4. The present petition in I.A. No. 54 of 2007 was filed by the respondents-defendants under Order XIX, Rule 2 C.P.C. seeking the relief, namely to cross-examine the deponent of the affidavit filed in support of the petition in I.A. No. 187 of 2006. A reading of the contents of the present petition would reveal that the petition in I.A. No. 187 of 2006 was filed by the petitioners-plaintiffs seeking temporary injunction accompanied by an affidavit of one of the petitioners-plaintiffs, namely petitioner-plaintiff No. 1. The respondents-defendants in the present I.A. stated that petitioner-plaintiff No. 1 filed affidavit in the petition in I.A. No. 187 of 2006 with false allegations and contended that the petitioners-plaintiffs are neither owners nor possessors of the suit property, and they have no right whatsoever over the suit schedule property, i.e. the land situated in Sy. No. 27, Farjakhanpet village. Therefore, they sought to summon petitioner-plaintiff No. 1, deponent of the affidavit filed in support of the petition in I.A. No. 187 of 2006, filed by the petitioners-plaintiffs, for grant of temporary injunction, to enable their counsel to cross-examine the deponent, to find out the true facts of the case.
5. The petitioners-plaintiffs filed counter to the I.A. opposing the relief sought for by the respondents-defendants, and reiterated their stand that they are the owners and possessors of the suit schedule property to an extent of one acre. They further stated that their father was the owner of the suit schedule property, and was in possession thereof till his death, and they succeeded to the said property as his legal representatives upon his death. They denied the averments made by the respondents-defendants in the affidavit filed in support of the present petition, and prayed for dismissal of the I.A.
6. Having heard the learned Counsel for the petitioners-plaintiffs and the learned Counsel for the respondents-defendants, and considering the stand taken by the respective parties, the following two questions arises for consideration in the C.R.P.:
(1) whether the Court below was justified in ordering the present I.A. filed by the respondents-defendants under Order XIX, Rule 2 C.P.C. holding that the respondents-defendants counsel is entitled to cross-examine the petitioner-plaintiff No. 1, who swore to the affidavit filed in support of the petition in I.A. No. 187 of 2006, filed by the petitioners-plaintiffs, for grant of temporary injunction? and (2) Whether the present petition filed by the respondents-defendants is within the ambit and scope of Order XIX, Rule 2 C.P.C.?
7. Before adverting to the above two questions, a reference to the provisions Order XIX, Rule 2 C.P.C., which deals with the power of the Court to order attendance of deponent for cross-examination, would be appropriate, and the same reads as follows:
2. Power to order attendance of deponent for cross-examination:
(1) Upon any petition evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.
8. It is not uncommon that in proceedings under Order XXXIX, Rule 1 C.P.C. parties file affidavits in support of their respective cases. In case, the Court comes to the conclusion that it is necessary to summon the deponents of the affidavits, in view of the conflicting assertions or to find out the identity of parties, who filed affidavits of same person in support of their respective cases with opposite affirmations, then it can order so. In such circumstances, it cannot be said that the Court had committed an error or illegality in summoning the deponent for cross-examination. The purport of Order XIX Rule 2 C.P.C. appears to be that the Court need not either accept or reject the affidavits filed summarily, and it can consider the said affidavits, and if for valid and good reasons, it can always exercise its discretion to summon the deponent ,of the affidavit, to come to a just conclusion in the interest of justice, and in that regard, power is conferred on the Court to summon the person who had sworn to the affidavit and not the person who filed in support of the petition.
9. A bare perusal of the provisions of Order XIX, Rule 2, would make it clear that the question of ordering attendance for cross-examination of the deponent arises only in cases where the third party affidavits are filed in support of the cases of the respective parties. The language employed in the provision would not indicate conferring of any power on the Court to call a person swearing the affidavit filed in support of the petition, for cross-examination. The affidavit filed in support of the petition shall not be treated, as an affidavit filed by way of evidence, and in this context, it would be relevant, if a reference is made to the provisions of Section 3 of the Indian Evidence Act, 1872, which defines "evidence" to mean and include all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence. In the present case, the respondents-defendants filed the petition under Order XIX, Rule 2 C.P.C. to direct the petitioner-plaintiff No. 1 to come to the Court for the purpose of cross-examination. The question of applicability of the provisions of Order XIX, Rule 2 C.P.C. would arise only in cases where an affidavit was filed in support of the cases of the respective parties i.e. either on behalf of the plaintiff or on behalf of the defendant, by way of evidence, but certainly not an affidavit filed in support of a petition. Since the affidavit filed in support of a petition cannot be treated as evidence, the present petition filed by the respondents-defendants under Order XIX, Rule 2 C.P.C. seeking to summon the deponent of the affidavit filed in support of the petition for temporary injunction, was not maintainable, and more so when it is not the case of the respondents-defendants that they intended to summon petitioner-plaintiff No. 1 because he had sworn to the affidavit by way of evidence to support the case of the plaintiffs. The law is well settled that when affidavits are filed in a proceeding under Order XXXIX, Rule 1 C.P.C. or any other proceedings, and in case the Court entertains a doubt, with regard to the identity of the person or persons who gave the affidavit, then it has the power and discretion to order the attendance of the deponent of the affidavit, for cross-examination so as to come to a just concision, to determine such petition. In such situations, the order passed by the Court below to summon the deponent for cross-examination cannot be faulted and such orders, can neither be said to be illegal nor beyond the competence of the Court.
9.1 In the above view of the matter, it has to be held that the present application filed by the respondents-defendants under Order XIX Rule 2 C.P.C. is not maintainable, and the Court below was not justified in ordering the present application holding that the respondents-defendants counsel is entitled to cross-examine petitioner-plaintiff No. 1 who swore to the affidavit filed in support of the petition for grant of temporary injunction, and more so when the present application, does not fall within the ambit and scope of Order XIX Rule 2 C.P.C.
10. For the foregoing reasons, the order passed by the Court below, impugned in the C.R.P. cannot be sustained, and the same is accordingly set aside and the C.R.P. is allowed. No costs.