1984 Supreme(Cal) 82

High Court Of Calcutta
M. N. Roy
PIJUSH KANTI GUHA - Appellant
Versus
KINNORI MULLICK - Respondent
.  .   Of  .
Decided On : 03/14/1984

The Court held that in a proceeding under Order 19, there is discretion left with the Court and no applicant would have the absolute right to claim examination of a deponent on his affidavit as filed. It was only the Court concerned, who could decide, if in the facts of a given case, evidence of the deponent of an affidavit should be taken or not.

Headnote:

ORDER 19 RULE 1, 2 - INJUNCTION - CROSS-EXAMINATION OF DEPONENTS - COURT'S DISCRETION - JURISDICTION - EVIDENCE ACT, 1872, SECTION 1, 3 - CIVIL PROCEDURE CODE, 1908, ORDER 18, RULE 4, ORDER 39, RULE 1.

Fact of the Case:

The petitioner, who was carrying on a wholesale business in medicines and other pharmaceutical products under the name and style "Padcom", filed a Title Suit No. 455 of 1982 before the City Civil Court at Calcutta, praying for a declaration that he was and is a tenant under the opposite party No. 1 in respect of the said premises and also for appropriate permanent injunction. In that proceeding, the petitioner also filed an application under Order 39, Rules 1 and 2 read with Section 151 of the Civil Procedure Code, 1908 (CPC), praying for an ad interim order of injunction restraining the opposite parties from in any way interfering with or obstructing or disturbing the petitioner's possession as tenant in respect of the said premises. The learned Judge, City Civil Court at Calcutta was pleased to grant an ad interim temporary injunction on 17th March, 1982, in terms of those prayers apart from giving necessary directions for effecting service of notices on the opposite parties herein. Thereafter, on 19th January, 1984, the petitioner had filed a petition for adjournment, as the learned Senior Counsel for the opposite parties, Shri P, Sinha. was absent when the matter was taken up for hearing and the learned Judge was not willing to hear the matter in his absence, although the senior counsel of the petitioner was present in Court. The learned Judge was pleased to adjourn the matter, with a direction to the petitioner's Advocate to file a petition for adjournment. Accordingly, the petition for adjournment as in Annexure-B was filed. On 14th September, 1983, the injunction matter was heard in part and it transpired that certain facts relating to the injunction matters which were on the record, could not be proved except by adducing evidence both oral and documentary and that too for the purpose of establishing the petitioner's continued possession of the said premises as a tenant and accordingly in terms of the advice as received, the petitioner, on 19th September, 1983, filed an application under Order 39, of the CPC. This application under Order 39 for adducing oral evidence was rejected by the learned Court below on 14th December, 1983 and from such order, this Court was moved in revision, which application again, was rejected. Thereafter, on further advice, another application under Order 19, Rules 1 and 2 of the CPC, for allowing the petitioner to cross-examine the defendants on their affidavits, was filed with a further prayer for adducing oral evidence. Such prayer was made as it was alleged that the defendants were required to be cross-examined on their affidavits, as certain facts were required to be elucidated. On or about 23rd December, 1983, the necessary application was filed, the copy whereof has been annexed as Annexure-C to the present petition. The said application was heard on diverse dates by the learned Judge and ultimately, by the impugned Order No. 77 as indicated above, the application was dismissed.

Finding of the Court:

1. The Court held that the petitioner had no absolute right to claim examination of a deponent on his affidavit as filed. It was only the Court concerned, who could decide, if in the facts of a given case, evidence of the deponent of an affidavit should be taken or not. 2. The Court held that the provisions of Order 19, Rules 1 and 2, CPC, cannot be resorted to when and where the Court is expressly permitted to decide interlocutory matters on affidavit, either party to such a proceeding would not have any absolute right to cross-examine the concerned deponent. 3. The Court held that this case is governed by the determinations of the Gujarat High Court in the case of Kanbi Mavji Khimiji (supra ). Proceeding under Order 19. Rules 1 and 2 can of course be resorted to by agreement amongst the parties or their consent.

Issues: 1. Whether the petitioner had the absolute right to claim examination of a deponent on his affidavit as filed? 2. Whether the provisions of Order 19, Rules 1 and 2, CPC, can be resorted to when and where the Court is expressly permitted to decide interlocutory matters on affidavit? 3. Whether this case is governed by the determinations of the Gujarat High Court in the case of Kanbi Mavji Khimiji (supra ).

Ratio Decidendi: 1. The Court held that in a proceeding under Order 19, there is discretion left with the Court and no applicant would have the absolute right to claim examination of a deponent on his affidavit as filed. It was only the Court concerned, who could decide, if in the facts of a given case, evidence of the deponent of an affidavit should be taken or not. 2. The Court held that the provisions of Order 19, Rules 1 and 2 , CPC, cannot be resorted to when and where the Court is expressly permitted to decide interlocutory matters on affidavit, either party to such a proceeding would not have any absolute right to cross-examine the concerned deponent. 3. The Court held that this case is governed by the determinations of the Gujarat High Court in the case of Kanbi Mavji Khimiji (supra ). Proceeding under Order 19. Rules 1 and 2 can of course be resorted to by agreement amongst the parties or their consent.

Final Decision: The application was rejected without issuing a Rule. There was no order as to costs.