Rajasthan High Court - Jaipur
Ganpat Singh And Anr. vs Ashok Kumar And Ors. on 19 May, 1999
Equivalent citations: 2000(1)WLC499, 1999(1)WLN539
JUDGMENT A.K. Singh, J.
1. The non-petitioner No. 3 is not a necessary party to the present case. Therefore, it is not necessary to effect the service on the non-petitioner No. 3. The learned Counsel for the petitioners and the non-petitioners Nos. 1 and 2 agreed that the revision petition may be finally disposed of at this stage.
2. Heard the arguments.
3. This revision petition is directed against the order dated 7.5.1999 passed by the learned Additional Civil judge (Senior Division) No. 1. Jodhpur in civil misc. case No. 4/99 whereby the application filed by the petitioner under Order 19 Rule 2 C.P.C. was rejected.
4. The learned Counsel for the petitioner has submitted that the provisions of Order 19 Rule 2 C.P.C. are applicable to the affidavits filed in support of the application under Order 9 Rule 2 C.P.C. It is further submitted by him that in the instant case, the plaintiff did not file any documentary evidence to prove the alleged tenancy and he chiefly relied on his own affidavit and, therefore, it was necessary to give an opportunity to the petitioner to cross-examine the plaintiff regarding the averments made by him in his affidavit and since this has not been done, the present petition deserves to be admitted and allowed.
5. The learned Counsel for the non-petitioners No. 1 and 2 has opposed the present revision petition on the ground that apart from the affidavit filed by the plaintiffs, there was sufficient circumstantial evidence to establish the alleged tenancy. It is further submitted by him that the application moved by him that the application moved by the petitioner did not contain any good reasons for granting permission to the petitioner to cross-examine the plaintiff under Rule 2 of Order 19 C.P.C. Lastly it is submitted by the learned Counsel for the non-petitioners No. 1 and 2 that the scope of a revision petition Under Section 115 C.P.C. is very limited and in the present case, there is no justification for allowing the revision petition.
6. There is no dispute between the parties that a view of the law laid down by a Division Bench of this Court in Ramswaroop and Ors. v. Bholu Ram 1989 (2) RLR-472, the provisions of Order 19 C.P.C. are applicable to an application for grant of temporary injunction under Order 39 C.P.C. A learned Single Judge of this Court in Smt. Sudha and Anr. v. Manmohan and Ors. RLW 1995 (1) (Raj)-498 has taken a similar view but made an observation to the effect that the discretion available to the Court under Order 19 Rule 2 C.P.C. is not arbitrary but judicial discretion having justice oriented approach should be exercised in summoning the deponent in affidavit for cross-examination. The learned Single Judge has further pointed out that an order for attendance of the deponent for cross-examination would be ordinarily made unless the court is satisfied and convinced that the application for summoning the deponent for cross-examination is bonafide and summoning of the deponent for cross-examination is necessary in the interest of justice and unless both these conditions are satisfied, the court would not be justified in making an order under Order under Order 19 Rule 2 C.P.C. for cross-examination of the defendant. In Chhotu Khan v. Abdul Karim 1991 (2) WLC (Raj.)-219, a learned Single Judge of this Court held that under Order 19 Rule 2 C.P.C, the Court may order the attendance of the deponent for the cross-examination but the learned Single Judge has drawn the attention to the following observations of the Hon'ble Supreme Court in Hindustan Aeronautics Ltd. v. Ajit Prasad .
In our opinion, the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code. The decision of this Court in Pandurang Dhoni v. Maturi Hari Jadhav , and D.L.F. Housing & Construction Co. (P) Ltd., New Delhi v. Sarup Singh .
7. In a recent case Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. 1998 (4) CCC-82, the Hon'ble Supreme Court considered the scope of Section 115 C.P.C. at page 86 of the report, the Hon'ble Apex Court observed:
In our view the High Court has committed a jurisdictional error in entertaining the revision petition filed by the respondent challenging the order dated 21.5.1998. That order is clearly not revisable by the High Court in view of the specific interdict embodied in the proviso to Section 115(1) of the Code. Under the same Sub-section, a High Court is empowered to call for the records of any case which has been decided by any court subordinate thereto, if it had exceeded or failed to exercise the jurisdiction vested in it, or had acted illegally or with material irregularity. In such cases the High Court has power to make such order as it thinks fit. The restriction against exercise of such a general power has been incorporated in the proviso which was inserted in the Sub-section by the CPC Amendment Act of 1976. That proviso reads thus:
Provided that the High Court shall not, under the section, varyor reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it has made.
Out of the two clauses in the proviso the former has no application to the order which has been challenged in the High Court because even if the application on the respondent filed on 21.5.1998 was granted the suit would not have been finally disposed of. The latter clause could be resorted to only if that order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the respondent. Thus, even if such an order passed by the subordinate court has any illegality or is affected by material irregularity the High Court will not interfere unless the said order, if allowed to stand, would occasion a failure of justice or its effect would be infliction of irreparable injury to any party.
8. In view of the above authorities laying down the scope of Section 115 C.P.C. and the conditions precedent for the exercise of judicial discretion vested in the Court under Order 19 Rule 2 C.P.C, the learned Counsel for the petitioner has drawn my attention to the judgment given by the learned Single Judge of this Court in Bhanwarlal v. Smt. Kamla Devi 1981 WLN- 343. In that case, the prayer for cross-examining the deponent was allowed by this Court because the Court was convinced with the order under revision, if allowed to stand, would occasion to failure of justice. On the face of the judgment, the finding that there was a likelihood of failure of justice, if order under revision is allowed to stand, was the finding given after taking into consideration the facts and circumstances of the case.
9. In the instant case, it must be held that the learned lower court had a jurisdiction under Order 19 Rule 2 C.P.C. to grant or not to grant permission for the cross-examination of the deponent. Hence, the impugned order dated 17.5.1999 cannot be said to have been passed, without any jurisdiction vested in the lower court. So far as the question of material irregularity is concerned, there does not appear to be anything to justify the conclusion that any material irregularity has been committed by the learned Civil Judge while passing the impugned order. As pointed out by a learned Single Judge of this Court in Smt. Sudha v. Manmohan (supra), two conditions are necessary for grant of permission under Order 19 Rule 2 C.P.C. The first is that the application should be bonafide which means that it should be supported by sufficient and cogent reasons and the second is that the court should be satisfied that permitting the cross-examination of the deponent was necessary in the interest of justice. It is obvious that for the purpose of coming to the conclusion whether it is necessary or not necessary to allow the permission of cross-examination the deponent of an affidavit, it is the court concerned and non-else which has to arrive at an independent conclusion. In the instant case, there is nothing to show that the learned lower court was of the opinion that allowing the cross-examination of the deponent was necessary in the interest of justice. I, therefore, hold that no material irregularity has been shown to have been committed by the learned lower court while passing the impugned order.
10. So far as, the question of irreparable injury referred to in the proviso given in Section 115 C.P.C. is concerned, at this stage it cannot be said that any irreparable injury is likely to be caused to the petitioner if the impugned order is allowed to stand. Nothing prevents the petitioner from showing before the trial court that the averments made in the affidavit are not based on the personal knowledge of the deponent or that the evidence contained in the affidavit suffers from inherent probability as to make it completely unbelievable. Nothing prevents the petitioners from placing reliance on the circumstantial evidence and documentary evidence if any to show whether the plaintiffs case is or is not prima faice good and even if an order is passed against the petitioner under Order 39 Rules 1 and 2 C.P.C., there is nothing to prevent the petitioner from filing an appeal against that order. It would premature to hold at this stage that any irreparable injury is likely to be caused to petitioner if the impugned order is allowed to stand.
11. For the reasons mentioned above, in view of the law laid down by the Hon'ble Supreme Court and this Court in the cases referred above, there is no alternative but to dismiss the revision petition at this stage and it is hereby dismissed.