The court emphasized the importance of adhering to the amended provision of Section 115 CPC and found the impugned order not maintainable under the amended provision.

H.N. Sarma, J.

1. By this application under Article 227 of the Constitution of India the petitioner has challenged the order, dated 12.2.2003 passed in Misc (J) Case No. 1/03 arising out of Title Suit No. 16/2003 by the learned Civil Judge (Senior Division) No. 3, Kamrup, Gauhati.

2. Heard Mr. S.P. Roy, learned counsel for the petitioner. Although a caveat has been filed being Caveat No. 1480/04, however, none appears on behalf of the caveator when the matter was taken up.

3. Before the present petition, the petitioner filed CRP No. 162/03 under Section 115 CPC. While the said revision petition came up for hearing on 27.7.04, the following order was passed and the revision petition was dismissed accordingly.

"Mr. D. Nandi, learned counsel for the petitioner does not want to press this revision petition, in view of the amendment of Section 115 of the CPC.

The revision petition is dismissed as not pressed."

4. Upon dismissal of the aforesaid revision petition, as not pressed, the present petition under Article227 of the Constitution of India challenging the same impugned order, has been filed by the petitioner.

5. Facts necessary for disposal of this writ petition may be summarised as follows - One Rameshwar Rai as plaintiff instituted Title Suit No. 16/03 in the Court of the learned Civil Judge (Senior Division) No. 3, Guwahati against the present petitioners impleading them as defendants. The suit was for declaration of right, title, interest and confirmation of possession as well as for permanent injunction upon the suit property against the defendants. In the said suit the plaintiff also filed an application under order 38 , rule 1 and 2 read with Section 151 CPC praying for a direction to furnish security of Rs. 12,00,000 and in the meantime pass an order of conditional attachment of Rs. 12,00,000 lying deposit in the Court and also an application for temporary injunction restraining the opposite parties from realising rent directly from the defendant Nos. 3, 9 and 10. The said application for injunction was registered as Misc (J) Case No. 1/03. Upon notice being issued the defendant/petitioners without filing objection to the aforesaid Misc case or written statement in the suit, filed an application on 24.1.03 praying, inter alia, for calling the plaintiff deponent who has sworn the affidavit before the learned trial court in support of the injunction as well as petition for attachment before judgment and allow them to cross-examine him, as allegedly, according to the defendant, the plaintiff made false statement in the plaint. In the said application defendant also prayed for keeping in abeyance filing of the written objection as well as written statement in the meantime. Against this, the plaintiff also filed their written objection controverting the submissions of the defendants on 10.2.2003.

6. The learned trial court heard the aforesaid prayer of the defendant petitioner and by virtue of a long and elaborate order, dated 17.2.2003 rejected the prayer of the defendant-petitioner holding, inter alia, as follows:

"Though the appellants have stated that the petitioners have made some false and fabricated statement in his plaint, but the O.Ps. have not yet submitted the written objection contesting the injunction petition. If the O.P. Nos. 1, 2, 3 and 7 are allowed to submit their written objection after cross-examination of the deponent, it will prejudice the plaintiff/petitioner .

Under such circumstances the prayer for cross-examination of the deponent will be considered after submission of the written objection by the O.Ps."

The aforesaid order is the subject-matter of challenge in this petition.

7. Mr. S.P. Roy, learned counsel for the petitioner has submitted that the aforesaid order dated 17.2.03 is without any jurisdiction and the learned trial court had no jurisdiction to allow cross-examination after filing the objection or completion of the pleading, inasmuch as, the plaintiff respondent made false statement in the