Madras High Court
S.Karuppannan vs N.Chinnappan on 16 October, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 16.10.2012. CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(PD)No.3442 of 2012 and M.P.No.1 of 2012 1. S.Karuppannan 2. S.Arumugam .. Petitioners vs. 1. N.Chinnappan 2. Sukumar 3. K.N.Venkatarama Ayyar 4. K.R.Venkataramanan .. Respondents Civil Revision Petition against the order dated 31.7.2012 in I.A.No.371 of 2012 in I.A.No.1005 of 2009 in O.S.No.301 of 2004 on the file of the Principal District Munsif, Tiruchengode. For petitioners : Mr.P.Valliappan ORDER
Plaintiffs are the revision petitioners.
2. The plaintiffs filed the suit for declaration and other reliefs. Defendants 1, 2, 5 and 6 filed I.A.No.1005 of 2009 for interim injunction as if the second defendant purchased the suit property from the first defendant and the second defendant is in possession of the same. In that application, the plaintiffs filed I.A.No.371 of 2012 under Order XIX Rules 1 and 2 to permit them to cross-examine the deponent of the affidavit who filed I.A.No.1005 of 2009 and that application was dismissed and aggrieved by the same, this revision is filed.
3. Mr.P.Valliappan, learned counsel for the revision petitioners submitted that under Order XIX Rule 2, when an affidavit is filed in support of an application and when that party is not prepared to examine himself, the opposite party can seek permission of the court to cross-examine the deponent of the affidavit to prove his case and for that purpose, Order XIX Rule 2 is provided in the Code of Civil Procedure and that has not been properly appreciated by the court below and the application was dismissed. He relied upon the judgment in KANHAIYALAL v. MEGHRAJ (AIR 1954 NAGPUR 260) in support of his contention and submitted that Order XIX Rule applies to interlocutory applications and I.A.No.1005 of 2009 was filed by the respondents for injunction and in the affidavit, they referred to various documents and therefore, to prove that the second defendant was not in possession of the property, he has to be cross-examined and for that purpose, the present application was filed and that was not properly appreciated by the court below.
4. I am unable to accept the contention of the learned counsel for the revision petitioners. Order XIX Rule 19 of the Code of Civil Procedure deals with affidavits. Order XIX Rule 1 deals with the power of the court to direct any party to prove any particular fact by affidavit or affidavit of any witness may be read at the hearing and if the party desires the production of a witness for cross-examination and when such witness can be produced, the court should not allow the party to give evidence by affidavit. Order XIX Rule 2 deals with the power of the court to order the attendance for cross-examination of the deponent who gave evidence by affidavit upon any application.
5. In the judgment in MARNEEDI SATYAM v. VENKATASWAMI (AIR(36) 1949 MADRAS 689) it has been held that "Though the Evidence Act is not applicable to affidavits, it does not mean that any affidavit of any person can go in as evidence 'proprio vigore' without necessity for him to enter the witness box."
In that judgment, the learned Judge observed that affidavits are not evidence except (a) where there is an agreement between the parties that evidence can be taken by affidavit, or (b) where under O.19, R.1, Civil P.C., there is an order of the Court that particular facts may be proved by an affidavit or that the affidavit of any witness may be read at the hearing.
6. The Honourable Supreme Court in the judgment in SUDHA DEVI v. M.P.NARAYANAN ((1988) 3 SCC 366) held as follows:-
"... affidavits are not included in the definition of 'evidence' in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure."
7. Our High Court held in KANNAMMAL v. BAGYAMMAL (1998 (I) CTC 280) that the petition under Order XIX Rule 2 of the Code of Civil Procedure cannot be maintained when an affidavit is filed only in support of the application and not as evidence as contemplated under Order XIX Rule 2. This has been elaborately dealt with by the learned Judge in the judgment in SREE RAMAVILAS SPINNING AND WEAVING MILLS (P) LTD. v. VIRUDHUNAGAR TEXTILES (2011 (1) MWN (CIVIL) 781) as follows:-
"It is an everlasting principle of law that an Affidavit can be termed to be an evidence within the ambit of Section 3 of the Indian Evidence Act only in those cases, where the same is filed at the instance or under the direction of the Court or law, specifically permits for proof of anything by Affidavit. To put it in short, Affidavit can be construed as an evidence under Section 3 of the Indian Evidence Act, if the Court has directed any party to a proceeding to file the same or if law insists to prove a fact by way of filing an Affidavit. If the said circumstance are in existence, the Court can invoke the provisions of Order 19, Rules 1 and 2 of the Code of Civil Procedure 1908 so as to enable the Respondent in any Petition to make cross-examination to the deponent of the Affidavit concerned."
8. In the judgment in SMT.SUDHA AND ANOTHER v. MANMOHAN AND OTHERS (AIR 1996 RAJASTHAN 59) it is held as follows:-
"The order for attendance of deponent of the affidavit for cross-examination, is absolute discretion of the Courts-below. It is true that absolute discretion means not arbitrary but judicious discretion having justice oriented approach in summoning the deponent of an affidavit for cross-examination. Order for attendance of the deponent for cross-examination would not be ordinarily be made unless the court is satisfied and convinced that application for summoning the deponent for cross-examination is bona fide and summoning of the deponent for cross-examination is necessary in the interest of justice. Unless both the conditions co-exist the Subordinate Courts have no jurisdiction to summon a deponent for cross-examination under Order 19, Rule 2, C.P.C."
9. In the judgment in LALITA v. CIVIL JUDGE (JR. DIV.), UDAIPUR CITY (SOUTH) AND OTHERS (AIR 2005 RAJASTHAN 293), it is held as follows:-
"The Rule 2 of Order 19, CPC clearly provides that the Court enjoined a power to order permitting the cross-examination of the deponent upon the application submitted by the party. Therefore, when the executing Court decides to decide the matter on the basis of the affidavit that does not mean that power of the executing Court under Rule 2 of Order 19, CPC has been taken away, expressly, impliedly or by interpreting any of the judgment relied upon by learned counsel for the respondent. At this stage, it may be emphasized that it is for the court to decide whether in the facts of the case, the cross-examination be allowed or not and this discretion should be exercised judicially."
10. Therefore, having regard to the judgment of our High Court when an affidavit is filed in support of an application, either party cannot invoke Order XIX Rule 2 to call upon the deponent to make himself available for cross-examination as the affidavit is not filed as evidence. The 'evidence' is defined in the Evidence Act as follows:-
" Evidence means and includes --
(1) 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;
(2) all documents including Electronic records produced for the inspection of the Court, such documents are called documentary evidence."
11. Therefore, as per the judgment of the Honourable Supreme Court rendered in (1988) 3 SCC 366, affidavits are not included in the definition of evidence. Further, in the judgment of the Rajasthan High Court, it has been stated that the party has to make out a case for the exercise of that power by the court and absolute discretion is vested with the court either to allow it or reject the same. Further, a reading of Order XIX Rule 2 of the Code of Civil Procedure makes it clear that when any evidence is given by affidavit, the court may at the instance of either party order the attendance for cross examination of the deponent. Therefore, in the absence of any evidence given in the form of affidavit filed in support of an application, it is not in the nature of evidence and the court has no discretion to permit the cross-examination of the deponent at the instance of either party.
12. In this case, the respondents filed I.A.No.1005 of 2009 for injunction and they will have to prove their possession and when they are not coming forward to prove their possession by entering into the box and satisfy the court by marking the documents, it is not open to the revision petitioners to insist that they must be cross-examined. Hence, the below has rightly dismissed the application and I do not find any infirmity in the order of the court below.
In the result, the civil revision petition is dismissed. The connected miscellaneous petition is also dismissed.
ssk.
To
1. The Principal District Munsif, Tiruchengode.
2. The Record Keeper, V.R. Section, High Court, Chennai