Andhra HC (Pre-Telangana)
Gaddipati Sambrajyam And Anr. vs Panguluri Mahalakshmamma And Ors. on 2 December, 1994
Equivalent citations: 1995(1)ALT305
ORDER B.K. Somasekhara, J.
1. These two revision petitions involve similar questions of law and fact and arise out of a common judgment dated 30-4-93 in C.M.A.Nos. 5/93 and 11/93 on the file of the Sub-Judge, Bapatla. They were preferred against the common order dated 25-11-92 in I.A.Nos. 1264/91 and 1265/91 in O.S.No. 147/91 on the file of the District Munsif, Bapatla.
2. The learned Munsif Magistrate while allowing the applications afforded the relief of temporary injunction to the plaintiffs in the suit restraining the defendants from interfering with their possession of items 1 and 2 of the plaint schedule properties. Item No. 1 is an agricultural land with D.No. 389/5 with an extent of Ac. 1.33 guntas whereas item No. 2 is a residential house. Aggrieved by such orders in favour of the present petitioners who are the plaintiffs in the suit, the respondents herein who are the defendants in the suit, took the matter in appeal which was allowed by the learned Sub-Judge thereby dismissing the application for temporary injuncting and setting aside the orders passed by the learned Munsif Magistrate. Therefore, the petitioners herein who are the plaintiffs in the suit have questioned the correctness and legality of the judgment of the learned Sub-Judge.
3. The most perfunctory and aberrated orders and judgments of the two learned Judicial Officers of the Courts below, if deciphered with some strong strain bring out these facts.
4. Panguluri Lakshmamma and Gaddipati Sambrajyam are the daughter and the grand-daughter respectively of one Panguluri Veeriah. They filed the suit - O.S.No. 147/91 against defendant No. 1 Panguluri (Maha) Lakshmamma (another) daughter-in-law of Veeriah and who is also the wife of Radhakrishna Murty one of the sons of Veeriah. Defendants 2 to 5 are the close relatives of defendant No. 1 and the plaintiffs in the suit. Panguluri Veeriah was the owner of the suit schedule properties. He executed Ex.B-1 the registered will dated 20-5-78 in favour of defendant No. 1 bequeathing the schedule properties. He resided in item No. 2 of the schedule properties. It appears that Radhakrishnamurty stayed with defendant No. 1 and his children in one of the portions of the house of Veeriah. It was alleged that Veeriah bequeathed his properties under Ex.B-1 in favour of defendant No. 1 with the fond hope that he would be looked after well during his old age, but he was disappointed. It appears that the plaintiffs who are the daughter and grand daughter of Veeriah looked after him well till he died on 18-9-1989 as disclosed from Ex.A-2 death certificate. It is alleged that the plaintiffs looked after the deceased well whereas he was neglected by defendant No. 1 and others and therefore, the deceased executed another will Ex.A-1 dated 15-9-89 by cancelling the will Ex.B-1 and bequeathing the properties thereunder in favour of the plaintiffs. It was alleged that the plaintiffs paid the assessment to the suit properties and were in possession of the same after the death of Veeriah and the defendants who had no manner or right or possession over the same, started interfering with the possession of the plaintiffs and therefore, they filed the suit for permanent injunction and also I.As. 1264/91 and 1265/91 for temporary injunction. The defendants and in particular defendant No. 1 while denying the case of the plaintiffs contended that Veeriah was in a state of Coma when he died and since a long time he was not in a disposing state of mind and particularly at the time of his death and the plaintiffs managed to get up Ex.A-1 and that the deceased had no reason to cancel the will Ex.B-1 as defendant No. 1 and others looked after him quite well till he died. They also denied the possession of the plaintiffs in regard to the suit schedule properties and on the other hand, they contended that defendant No. 1 has been in possession of the suit schedule properties till the date of the suit. Both the sides filed documents and affidavits in support of their respective stands. Exs. A-1 to A-l0 are the documents for the plaintiffs and Exs.B-1 to B-21 are the documents for the contesting defendants. The affidavits of number of persons were filed as detailed in para 18 of the judgment of the learned Sub-Judge. The learned Munsif on perusal of such materials before him and after hearing both the sides came to the conclusion that the plaintiffs had made out a prima facie case and accordingly allowed the applications whereas, the learned Sub-Judge held it against them and rejected the relief of the order of injunction granted to them by allowing the appeals and dismissing the applications.
5. It is found by the learned Munsif Magistrate that Ex.A-1 is the last will left by the deceased bequeathing item No. 1 in favour of plaintiff No. 1 and item No. 2 in favour of plaintiff No. 2, that Exs.A-3 and A-4 which are the land revenue receipts dated 5-3-91 are in the name of plaintiff No. 1 and Exs.A-8 and A-9 which are the adangals for the faslies 1400 and 1401 show the name of the 1st plaintiff regarding item No. 1, Ex. A-9 refers to the will Ex.A-1 although Ex. A-9 another adangal did not show the name of the plaintiff in regard to item No. 1. Asagainst this, Exs.B-2 to B-4 the land revenue receipts for the year 1986 did not mention the 'D' number and therefore, did not concern the said property and they were of the year 1986 even before the death of the deceased. It is further found that Ex.B-5 the claim application of defendant No. 1 dated 26-7-89 shows her name as the owner of item No. 1 as a declaration. Therefore, the learned Munsif felt that as between the materials of the plaintiff No. 1 and defendant No. 1 the former establish her prima facie possession regarding item No. 1 than the latter. Regarding Item No. 2 a thatched house and vacant site with assessment No. 362, Ex. A-5 the house tax receipt with demand notice, stands in the name of plaintiff No. 2 dated 8-11-91 which is subsequent to the last one. Exs.B-8 to B-12 which are the house tax receipts and the demand notices produced by defendant No. 1 were in regard to assessment No. 1806 but not in regard to assessment No. 362 namely item No. 2. Exs.B-20 and B-21 the certificates issued by the Sarpanch after filing the suit concern assessment No. 362 with Door No. 5-8 whereas respondent No. 1 was residing in Door No. 5-9 in assessment No. 1806. Ex.B-19 the voters list of Ponnur assembly constituency for the year 1988 showed that plaintiff No. 2 was staying in Door No. 5-8 and defendant No. 1 was residing in Door No. 5-9. It appears that Ex.B-12 the complaint made to the police concerns some other property and Exs.B-13 to B-17 the postal receipts did not show the possession of defenant No. 1 regarding item No. 2 and Ex.B-18 is the house-hold supply card stood in the name of Veeriah, but not defendant No. 1. Most of the documents filed by defendant No. 1 were subsequent to the filing of the suit. Exs.A-6 and A-7 voters lists supported the case of the plain tiffs. It is found that Veeriah died in suit item No. 2 which has the address mentioned in Ex.B-18 ration card. Therefore, the learned Munsif held that the probability of the prima facie case as between the plaintiffs and the defendants, the former was stronger than the later. Regarding the affidavits the learned Munsif pointed out that since the two sets of affidavits - one in favour of the plaintiffs and the other in favour of the defendants stood even and therefore, they did not improve the position. Thus, he recorded a finding in favour of the plaintiffs regarding prima facie possession based on the last will Ex.A-1 and thus granted the order of temporary injunction.
6. The learned Sub-Judge re-assessed the whole materials before him and in the first place held thatEx.A-1 is not proved and secondly, he drew conclusions on the same materials as against the plaintiffs, going beyond the contents of the documents. He has taken very strong exception to the finding of the learned Munsif in believing Ex.A-1 since the affidavits of third parties filed by defendant No. 1 showed that the deceased was in Coma for about six months prior to his death, The learned Sub-Judge has pointed out that the execution of Ex.A-1 will was not proved, that the learned Munsif who did not depend upon the affidavits, was wrong in holding the prima facie possession in favour of the plaintiffs, that all the documents which were based on the last will by the plaintiffs had no relevancy and the certificates issued by the Sarpanch as Exs.B-20 and B-21 had a greater evidentiary value and that the documents of defendant No. 1 prima facie show her possession and that plaintiffs were to seek a declaration of their title regarding the suit schedule properties and thus the relief of temporary injunction granted to them by the learned Munsif deserve to be set aside.
7. On a proper balancing of the two orders of the Courts below, this Court feels that atleast the learned Munsif Magistrate based his finding on the materials placed before him which appears to be more probable having prima facie evidentiary value than that of the 1st defendant. The learned Sub-Judge appears to have gone tangentially beyond the materials before him and without giving proper reasons as to how the finding of the learned Munsif regarding the prima facie possession of the plaintiff regarding the suit properties was not proper. The materials were sufficient to hold prima facie possession of the plaintiffs regarding the suit properties. Ex.A-1 the last will prima facie establish that the plaintiffs had a reason to come into possession of the schedule properties. Their conduct in payment of assessment tax after the death of the deceased corroborated the true event after Ex.A-1. Ex.B-1 contained the revocation clause and Ex.A-1 came into existence prima facie after revoking Ex.B-1. The contention of defendant No. 1 that the deceased was in Coma state since six months prior to his death is not supported by any medical evidence or any dependable material. The other documents like adangals, voters lists, ration card etc., all probabilise the presence of the plaintiff with the deceased when he died than that of defendant No. 1 who was content with having a registered will. There appears to be a patent attempt to create documents in support of Ex.B-1 by defendant No. 1 and the persons interested in her even before the death of Veeriah. The case of the plaintiffs regarding their possession based on a will- Ex.A-1 appears to be stronger, probable and convincing than that of the defendant No. 1. Therefore, on facts and reasons, the finding of the learned Munsif regarding the prima facie possession of the plaintiffs with regard to the suit schedule properties is convincing than that of the learned Sub-Judge. The learned Sub-Judge had no reason to re-assess the entire materials when the learned Munsif had exercised the discretion based on reasons and materials. The learned Sub-Judge has also not given a finding that the only view possible in such a situation was in favour of defendant No. 1. In such a situation on facts, the learned Sub-Judge was not justified in interfering with the discretion of the learned Munsif in granting the relief of temporary injunction in favour of the plaintiffs.
8. It is shocking to note that the fundamentals in regard to the equitable relief of injunction are totally ignored by the two Courts below. The learned Sub-Judge in the appeal no doubt mentioned certain points touching upon such a matter, but did not deal with them as required in law. The learned Munsif raised only one point for determination viz., "Whether the petitioners in I.A.Nos. 1264 and 1265 of 1991 are entitled to the relief of temporary injunction as prayed for?"
The learned Sub-Judge although did not raise the point for determination formulated the principles in granting or rejecting injunction, in para 22 of his judgment viz., ".......In order to get a permanent injunction, the petitioners have to establish that, they were in possession and enjoyment of the suit property by the date of the suit and that balance of convenience or irreparable injury in their favour and incidentally they have to show that the title for the properties to which they sought permanent injunction is in them and in a suit for permanent injunction, they have to establish prima facie that, they were in possession and enjoyment of the suit property by the date of the suit and that condition is a sine-qua-non besides the condition of the balance of convenience or irreparable injury".
Undisputably both the learned Judges are far away from the settled principles. The learned Sub-Judge has gone one step beyond in betraying ignorance. He has noted the fundamentals about the relief of permanent injunction and not temporary injunction. At the same time, it is mentioned that in a suit for permanent injunction prima facie possession has to be established on the date of the suit. Patently both the learned Judges did not consider the question of balance of convenience, irreparable injury etc., in addition to the equities in order to exercise or withhold the discretion in dealing with such matters. Therefore, the impression they have given to this Court is that they are totally ignorant of the law in regard to temporary injunctions and require to be remainded of the same for their guidance and such other Judicial Officers who deal with such matters.
9. Chapter VII of the Specific Relief Act, 1963 from Sections 36 to 42 deals with injunction generally. Section37 concerns temporary and perpetual injunctions. Section 38 enumerates as to when perpetual injunction can be granted and Section 41 enumerates as to when injunctions can be refused. Section 37 (1) explains temporary injunctions as to continue until a specified time or until further orders of the Court and that they may be granted at any stage of the suit and are regulated by the Code of Civil Procedure. Similarly permanent injunction or perpetual injunction is explained in Section 37 (2). Order 39 of the Code of Civil Procedure deals with temporary injunctions and interlocutory orders. There is no scope to confuse between temporary injunctions and interlocutory orders and the permanent reliefs of such nature to be granted under the Specific Relief Act or under any other law. Since the fundamentals about the implications of the temporary injunction and orders in the nature of temporary injunction are settled atleast for over a century, they could be neither questioned nor could be elaborated in meticulous detail with research or discovery and since such principles are already codified by authoritative pronouncements in the precedents, they may be conveniently noted in brief as follows:
10. The grant or refusal of a temporary injunction is covered by three principles viz., (1) if the plaintiff has made out a prima facie case, (2) if the balance of convenience is in his favour i.e., it would be greater incovenience to the plaintiff if the injunction is not granted than the inconvenience which the defendant or persons claiming through him would be put to if the temporary injunction is granted and (3) if the plaintiff suffers irreparable injury. The fact that the plaintiffs have made out a prima facie case, does not necessary mean that a temporary injunction can be issued. The meaning of 'prima facie case' should not be too much stretched to land in the loss of real purpose, 1. N.D. Basu's Law of Injunctions (Fourth Edition).. The very expression 'prima facie case' is to look into the matter on the face of it not to do well into it.
'Prima facie' means - at first sight; on the first appearance; on the face of it; so far as can be judged from the first disclose; presumably; a fact presumed to be true unless disproved by some evidence to the contrary (Black in Venkataramaiya's Law Lexicon Vol. 4 Second Edn.). So, when the plaintiffs depended upon their possession of the suit properties based upon a will, the Court was expected only to know whether there is a will and on the face of it, whether the plaintiffs would have come into possession of the suit properties. Because the defendants set up earlier will to base their possession, the Court was to find out whether on their face value they could have been accepted. The other circumstances namely, payment of assessment or land revenue by the parties, report to the Village Officers about their respective wills, cultivation of the land or the occupation of the residential house, the voters' list, the ration card etc., are all again prima facie circumstances to support such a prima facie case of possession based on will. The investigate on into the execution of the will registration, coming into possession in law etc., are all matters touching the merits of the case. Even the suspicious circumstances in regard to the will like the writings, the mental state etc., of the testator and all the surrounding circumstances are to be examined prima facie and not in meticulous detail like a trial where the parties will have opportunities to examine witnesses, cross-examine them and rebut certain circumstances appearing from such materials.
11. Therefore, the precedents appear to have settled the manner in which the prima facie case has to be examined in a case like this. "The rule that before the issue of temporary injunction the Court must satisfy itself that the plaintiff has prima facie case, does not mean that the Court should examine the merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to succeed. This would amount to prejudicing the case on its merits. All that the Court is to see that on the face of it the person applying for an injunction has a case, which needs consideration and which is not bound to fail by virtue of some apparent defects. The probability of right is sufficient to sustain an injunction". (Page 72 of Basu's Law of Injunctions supra). The purpose of such a prima facie enquiry is explained as: 'In many cases "......In many cases the Court would interfere to preserve the property in status quo during the pendency of the suit in which the rights to it were to be decided, and that, without expressing and often without having the means of forming, any opinion as to such rights; that it was true the Court would not interfere if it thought that there was no real question between the parties but that seeing there was substantial question to be decided, it would preserve the property until such question could regularly disposed of; and that in order to support an injunction for such purpose, it was not necessary for the Court to decide upon the merits in favour of the plaintiff; and that if the bill states a substantial question between the parties, the title to the injunction may be good, although the title to the relief prayed for might ultimately fail".
(Joyce's Doctrines 29, Quoted at page 72-73 of Basu's Law of Injunctions supra).
These principles appear to have been incorporated with approval in various precedents of the High Courts of Madras, Kerala, Delhi, Punjab, Karnataka, Himachal Pradesh and Madhya Pradesh. (Pages 1090 and 1091 of CPC by A.N. Saha, 3rd Edn.). Our own High Court has laid down in Firm Ram Kishun Shah Itwari Sahu v. Jamuna Prasad, AIR 1951 A.P. 469. that the real point, upon an application for temporary injunction, is not how the question ought to be decided at the hearing of the case, but whether there is a substantial question to be investigated and whether matters should not be preserved in status quo until that question can be finally disposed of. The fundamental of the principles governing temporary injunction are elaborated in the above terms by our own High Court in more than one precedent viz., Nawab Mir Barkat Ali Khan v. Nawab Zolfiquar Jah Bhadur, 1975(1) An.W.R. 32. Iruvaram Jayamma v. Padmavathamma, 1978(2) An.W.R. 308. Chintapatla Arvind Babu v. Smt. K. Balakistamma, . According to our own High Court all the three conditions are to be established to grant an. order of injunction, and the mere proof of one is insufficient. Therefore, any expression in any precedent which is inconsistent with these settled principles may not be correct. In sum and substance, the settled law regarding prima facie appears to be that merits of the case should not be examined closely, deeper examination of the controversies is impermissible, stands of the parties are not to be proved in such a manner to give a final decision, in discharging a prima facie case, the plaintiff need not establish title, it is only if he can show that he has a fair question to raise as to the existence of the right which he alleges and ultimately, the Court should be guided by the principles of equity. There remains no doubt that both the Courts below have flouted these fundamentals.
12. The settled law appears to be that an order under Order 39 Rules 1 and 2 of CPC is discretionary based upon the facts and circumstances of each case. In other words, such a discretion vests with a Court dealing with an equitable remedy called judicial discretion. The Supreme Court time and again reminded the Courts of such a principle so as to impress that such discretionary exercise of the powers should not be interfered with by the appellate Courts. In The Printers (Mysore) Pvt. Ltd. v. Pothan Joseph, ; the Supreme Court pointed out:
"............As is often said, it is ordinarily not open to the appellate Court to substitute its own exercise of discretion for that of the trial Judge; but if it appears to the appellate Court that in exercising its discretion the trial Courts has acted unreasonably or capriciously or has ignored relevant fact and has adopted an unjudicious approach, the it would certainly be open to the appellate Court and in many cases it may be its duty to interfere with the trial Court's exercise of jurisdiction".
In Uttar Pradesh Co-operative Federation Ltd. v. Sunder Bros, Delhi, the Supreme Court had to deal with the discretion vested in the Court as:
"......The appellate Court would be slow to interfere with the exercise of their discretion. In dealing with the matter raised before it at the appellate stage, the appellate Court would normally not be justified in interfering with the exercise of the discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it may have come to a contrary conclusion. If the discretion has exercised by the trial court reasonaly and in a judicial manner the fact that the appellate Court would have taken a different view may not justify such interference with the trial Court's exercise of discretion. If it appears to be appellate Court that in exercising its discretion the trial Court has acted unreasonably or capriciously or has ignored relevant facts, then it would be open to the appellate Court to interfere with the trial Court's exercise of discretion".
The Privy Council has long back as in 1920 cautioned that the mere possibility of the appellate Court coming to a different conclusion on the same facts and evidence will not justify interference vide Wazir Sunder Singh v. Musammat Farida Khannam, AIR 1920 P.C. 132. Therefore, following such principles the High Court of Mysore in Rangamma v. Krishnappa, AIR 1965 Mysore 310 = 1968 (1) Mysore L.J. 552 pointed out and put the principle in brief:
".........Granting or refusal of temporary injunction rests on the sound exercise of discretion by the trial Court. Such exercise of discretion cannot be lightly interfered with by the appellate Court, unless it is shown that such exercise of discretion is unreasonable or capricious. That a different view was possible on the facts and circumstances of the case by itself, will not be sufficient to interfere with the order".
Based on the precedents of the Supreme Court and various High Courts, the High Court of Karnataka in Lalithakshi Anandamgouda v. Sadnshivnppa Basappa Patil went to the extent of saying that the appellate Court has no jurisdiction to interfere with the discretionary order passed by the trial Court. To read in its own words:
"That being so, it is obvious, that the first appellate Court had no jurisdiction to interfere with the discretionary order passed by the trial Court, simply because, it was reasonably possible to take another view on the facts of the case. The first appellate Court has substituted its own discretion substituting the judicial discretion exercised by the trial Court. It could not do so. It had to stay its hands and confirm the order passed by the trial Court in the circumstances. The first appellate Court has made it clear that two interpretations are possible and that being so it is not proper to allow the defendant to construct a latrine with septic tank. That observation is clearly illegal. It has exceeded its jurisdiction in so observing. Its order cannot be sustained."
Therefore, the learned Sub-Judge appears to have substituted himself for the trial Judge and made a roving enquiry into the facts of the case and even there, landed into a serious error on the appreciation of facts and tried to substitute his own finding on the question of prima facie possession. Thus, the order of the learned Sub-Judge is not only illegal but also an exercise of exceeded jurisdiction.
13. It is significant to note that both the Courts below did not consider the question of balance of convenience and equities to grant or reject the relief of injunction.
14. Admittedly, both the parties are close relatives. The deceased had to depend upon them during his old age. Perhaps thinking that respondent No. 1 would come to his assistance, he might have executed the earlier will deed and since he was disappointed, he might have executed the last will in favour of the plaintiffs perhaps having known that they were more reliable to be depended during his old age. The last will rules the floor. The final success or failure depends upon the proof of the last will. Therefore, as between the case of the plaintiffs and the defendants, the balance of convenience to maintain the prima facie possession based on the will appears to be inclined towards the plaintiffs. If the 1st defendant is able to establish that the last will was hers, the balance of convenience will never be against her to get into the properties by lawful means. As against this, if the plaintiffs succeed in establishing their will as the last will if they are to be out of the possession of the schedule properties which they got prima facie, by virtue of the will they will be driven to unnecessary litigation to enforce their rights ultimately. It is apparent that although respondent No. 1, her husband and other defendants resided in the same area in a portion of the house, they have not exercised any sort of interest or possession over the suit properties. The plaintiffs are not guilty of any laches. On the other hand, the defendants have gone to the extent of approaching a Sarpanch to obtain some certificates regarding which neither he had any power or jurisdiction nor the propriety to issue such documents. The learned Sub-Judge has depended upon such documents without due respect to the rule of evidence or the rule of reason. Therefore, in equities, the plaintiffs are commanding to get the relief of temporary injunction than the 1st defendant. The conduct of the defendants in impairing the prima facie rights of the plaintiffs followed by possession over the suit properties is an additional circumstance against them to afford the equitable relief of injunction to the plaintiffs. Therefore, even on the question of balance of convenience and equities, it was the plaintiffs who were on a stronger footing than the plaintiff to get the relief of temporary injunction.
15. This Court is surprised to see the Courts below in dealing with the matter as if it were a trial by marking the documents, contemplating the proof of the documents as if it was a trial and examining the case of the parties on merits. This Court is not able to find any provision in the Civil Rules of Practice wherein the documents can be marked as exhibits at the stage of interlocutory matter. Regarding the affidavits also both the Courts appear to have gone into wilderness. As already pointed out both the sides filed number of affidavits in support of their respective cases. The learned Munsif did not depend upon the affidavits of third parties of both the sides on the ground that the learned Advocate for the respondents argued that the deponents did not own or possess any land nearby and that they belong to different wards and the affidavit of one A. Venkiah a neighbouring land owner was not filed. It appears to this Court that such a reasoning is without any basis. Affidavits are not actually examined to know whether the deponents had any lands nearby the suit land. They are also not examined to know whether their statements were reliable or not for any reason. Merely on the contentions of the learned Advocate, the learned Munsif was not justified in drawing such conclusions. The learned Sub-Judge while dealing with the affidavits was critical of the learned Munsif that although he rejected the affidavits of the third parties, his finding on the prima facie possession was wrong. In fact, the learned Sub-Judge found that the petitioners have prima facie proved the execution of Ex.A-1 through the affidavits of the scribe and the attestors. It appears that the relevancy and the value of affidavits while dealing with an application for injunction or an interlocutory matter are not seriously examined or known by the learned Munsif and the learned Sub-Judge. Rule 60 of the Civil Rules of Practice contemplates proof of affidavits in interlocutory proceedings. The same rule contemplates that the Judge may in any case direct evidence to be given orally and thereupon the evidence shall be recorded and exhibits be marked in the same manner as in a suit when lists of witnesses and exhibits shall be prepared. It is clear that such a rule is incorporated in view of Order 39 Rule 1 of C.P.C. and also Order 19 Rule 2 of CPC Order 39 Rule 1 of CPC specifically mentions the use of affidavits or affidavits to prove the ingredients of (a) to (c) of the provision, whereas Rule 2 of Order 39 of CPC conspicuously omits to do so. That is why in Saknlabatula Vykunta Rao v. Made Appalaswamy, our own High Court authoritatively held that in deciding an application under Order 39 Rule 1 of CPC in view of the urgency involved, the Court is expressly authorised to decide the point on affidavits. It was also held therein that Order 19 Rules 1 and 2 do not arise at all. The scope and the implication of the rule is thus stated therein:
".......In view of the urgency involved in the matter, the regular procedure of examining the petitioner and his witnesses and respondent and his witnesses is dispensed with and the Court is given a special power to decide the matter by affidavits. Further the scope of enquiry is quite limited and the rights of parties are not decided finally. That being the purpose of giving special power to the Court under Order 39 Rule 1, the question of summoning the deponent for the purpose of cross-examination at the instance of a party under Order 19 Rules 1 and 2, does not arise at all. The power given to the Court under Order 39 Rule 1, to decide the matters by affidavits is unfettered and is not subjected to the provisions of Order 19 Rules 1 and 2. In short, the provisions of Order 19, Rules 1 and 2 have no application at all to interlocutory matters governed by Order 39 Rule 1".
It is apparent that the Court was dealing with the proof of facts by affidavits only with reference to the applications under Order 39 Rule 1 of C.P.C. The question whether Order 19 Rules 1 and 2 is applicable to interlocutory applications was not the subject matter of the decision muchless that is considered. It is also clear that the absence or use of affidavits for injunctions under Order 39 Rule 2 CPC was not considered in the decision supra. Therefore, it appears that the matter was not exhaustively dealt with muchless any decision is rendered on that question. Therefore, in the context of what has been done in the present case by the two Courts below, this Court has felt the necessity to elaborate the legal position regarding use of affidavits in such situations. The law appears to be that affidavit is no evidence since it is not included in the definition of 'evidence' Under Section 3 of the Evidence Act and it is specifically excluded by Section 1 of the Evidence Act. But the Courts may permit the proof of any fact by means of affidavit under Order 19 Rules 1 and 2 of C.P.C. The precedents of various High Courts appear to be in favour of such a general rule (Page 15 of Sarkar on Evidence).
16. To understand the true and correct legal implications about the use and value of the affidavits, Order 19, Rules 1 and 2 of CPC may be repeated thus:
"Power to order any point to be proved by affidavit:
1. Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.
Power to order attendance of deponent for cross-examination.
2. (1) Upon any application 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".
The implications of Order 19 Rules 1 and 2 of CPC in relation to the affidavits appear to have been exhaustively dealt with in B.R. Vishwanath Singh v. Shivalingaiah, . Therein a clear distinction between Rules 1 and 2 of Order 19 of CPC is noted. Affidavits contemplated in Rule 1 are affidavits taken by way of evidence in order to prove particular fact or facts. Prove or proof in the sense in which that word is used in Rule 1 means final proof and not prima facie proof. Such a distinction is drawn from the expressions of the learned author Sarkar as follows:
"..........Prima facie evidence only means that there is ground for proceeding, it is not the same thing as 'proof which comes later when the Court has to find whether the accused is guilty. Because a Magistrate has found a prima facie case to issue process, it is a fallacy to say that he believes the case to be true in the sense that it is proved. Prima facie evidence which if accepted appears to be sufficient to establish a fact unless rebutted by acceptable evidence to the contrary. It is not conclusive".
That is how whenever a fact is permitted to be proved by means of an affidavit of a witness if the other side desires that such a witness should be produced before the Court for cross-examination, the Court should not accept that evidence given in the form of affidavit. That is why in the proviso to Rule 1 it is stated that an order shall not be made authorising the evidence of such witness to be given by affidavit. But that is not the case in regard to Rule 1 of Order 19 of C.P.C. The distinction of the two rules is marked by the learned Judge in Vishwanath Singh's case (12 supra) as follows:
".......Here a descretion vests in the Court both in the matter of taking evidence by way of affidavits and also in ordering the attendance of those persons for cross-examination. Further, if Rule 1 contemplates affidavits in proof of facts Rule 2 contemplates affidavits in support of or against applications. It is true that there are provisions in the Code and in several statutes providing for filing of applications claiming substantive reliefs. Any relief finally granted in such cases can be said to have been given on a particular fact or set of facts proved. To such cases, it can be said, Rule 1 is attracted. But Rule 2 which does not contemplate any such proof of fact or facts may be construed as one applicable only to applications claiming interim reliefs like a temporary injunction, appointment of a receiver. appointment of a guardian ad litem and the like".
Therefore, it is apparent both from the provisions supra and also the case law on the question that notwithstanding any provision of CPC or similar law contemplates for proof prima facie, affidavits may be permitted to be produced under Order 19 Rule 2 of CPC provided the proof contemplated is only prima facie and not the proof on merits, in which case a party may desire the deponent of the affidavit to be produced before the Court when the Court may not use the affidavit by way of evidence or it can call such witness for cross-examination by the adversery. This supplements the absence of use of affidavits in any provision like Order 39, Rule 2 of CPC by virtue of Order 19 Rule 2 of CPC and not otherwise. To conclude, the law appears to be square on the question that affidavit is no evidence in view of Section 1 of Evidence Act, but it assumes the character of evidence for certain purposes as stated above in view of Order 19 Rules 1 and 2 of CPC and also in view of the definition of 'evidence' Under Section 3 of the Evidence Act which reads thus:
"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 produced for the inspection of the Court; such documents are called documentary evidence".
Anaffidavit can be brought within the definition of 'document' under the same provision and therefore, such a document if permitted to be produced by the Court would be evidence, however, subject to the limitations under Order 19, Rules 1 and 2 of C.P.C. Judged in the back-ground of these legal fibres the reasons of the learned Judges of the trial Court and the appellate Court appear to be a negation of such principles.
17. Thus the judgment of the learned Sub-Judge in the appeal is a result of the exercise of excess jurisdiction or an exercise of jurisdiction illegally and with material irregularities and therefore, it deserves to be interfered with, within the powers of this Court in revision Under Section 115 of C.P.C. With all the defects, the order of the learned District Munsif which is within the exercise of his judicial discretion based on materials and reasons deserves to be maintained. Consequently, these two revision petitions are allowed. The judgment of the learned Sub-Judge in the appeal is set aside. The order of the learned District Munsif on the interlocutory applications in the suit is restored. Having due regard to the relationship between the parties, each party shall bear their respective costs throughout.