( 1 ) THIS is a revision petition filed by the original plaintiffs under sec. 115 of the Civil Procedure Code against the order passed by the learned Civil Judge Senior Division Kutch-Bhuj Shri R. H. Mavani in a Civil Suit No. 104 of 1967 filed by the plaintiffs-petitioners against the opponents-defendants refusing the request made by the petitioners to order the attendance of the original defendants Nos. 3 and 7 who had filed affidavits for cross-examination.

( 2 ) THE plaintiffs-petitioners had obtained an ad-interim injunction in the aforesaid suit filed by them. The opponents Nos. 3 and 7 filed affidavits in support of their say that it was not a case where interim injunction could be granted and ad-interim injunction granted by the Court should be vacated. In that proceeding the present petitioners filed Ex 6 requesting the Court to direct the attendance of the opponents Nos. 3 and 7 who had filed affidavits for enabling the petitioners to cross-examine them. By the impugned order that request of theirs was turned down.

( 3 ) SHRI C. T. Daru the learned Advocate appearing on behalf of the petitioners contended that the provisions of order 19 Rules 1 and 2 would control the provisions of Order 39 Rule 1 of the Civil Procedure Code. Order 39 Rule 1 of the Civil Procedure Code permits the Court to decide such interlocutory applications like the applications for interim injunctions by affidavits or otherwise. It could only mean that the Court could decide such applications on affidavits. It does not mean that the Court can ignore the provisions of Order 19 Rules 1 and 2 of the Civil Procedure Code. That power has to be exercised subject to the provisions of Order 19 Rules 1 and 2 of the Civil Procedure Code. Ordinarily the matter is to be decided on evidence. If one refers to the provisions of secs. 1 and 3 of the Evidence Act it is clear that affidavit is not evidence. Ordinarily the matter is to be decided by leading evidence meaning thereby that if it is oral evidence there must be viva-voce examination of the person who deposes to all the relevant facts. He also invited my attention to Order 18 Rule 4 of the Civil Procedure Code which reads as under:-THE evidence of the witness in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. He also invited my attention to sec. 30 of the Civil Procedure Code the material part of which runs as under:-SUBJECT to such conditions and limitations as may be prescribed the Court may at any time either of its own motion or on the application of any party. . . . . . order any fact to be proved by affidavit. Relying upon the provisions of this sec. 30 of the Civil Procedure Code he contended that the Court is empowered to order any fact to be proved by affidavit but that power is circumscribed. That power is to be exercised either of its own motion or on the application of any party. But that power was subject to conditions and limitations as may be prescribed. He contended that these limitations and conditions in relation to this topic were prescribed by the provisions of Order 19 Rules 1 and 2 of the Civil Procedure Code. In short his argument was that Order 39 Rule 1 of the Civil Procedure Code was controlled by the provisions of Order 19 Rules 1 and 2 of too Code. He therefore contended that the learned Civil Judge (S. D.) committed an error in refusing the request that the opponents Nos. 3 and 7 be directed to attend for cross-examination. His contention was that the learned Civil Judge (S. D.) therefore did not exercise the jurisdiction vested in him or acted with material irregularity in exercise of it. The impugned order should therefore be revised by this Court in exercise of its power under sec. 115 of the Civil Procedure Code.

( 4 ) IN reply to these arguments the learned Advocate Shri I M. Nanavati appearing on behalf of the opponents contended that if the scheme of the Code is taken into