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GAUHATI HIGH COURT
S.K.Homchaudhuri, J.
Rajeswar Rabha -Appellant
Versus
Khagen Chandra Kalita -Respondent
Civil Revision No. 182 of 1991
Decided On : 02-07-1991
INJUNCTION - CROSS-EXAMINATION OF DEPONENT - ORDER 39 RULE 1 CPC - ORDER 19 RULE 2 CPC - COURT'S DISCRETION - In an application for temporary injunction under Order 39 Rule 1 CPC, the court has the discretion to summon the deponent of the affidavit for cross-examination either suo moto or at the instance of a party, if the circumstances warrant it.
Fact of the Case:
The petitioner challenged the order of the Assistant District Judge rejecting his application to cross-examine the plaintiff in an application for grant of ad interim injunction under Order 39 Rule 1 CPC. The plaintiff had filed a suit for a declaration that he had equal right, title, and interest in the business of M/s Dipti Gas Agency as a joint partner/proprietor and for a permanent injunction restraining the defendant from preventing him from taking part in managing and running the business. The defendant filed an application under Order 19 Rule 2 CPC to cross-examine the plaintiff, which was rejected by the Assistant District Judge.
Finding of the Court:
The court held that the provisions of Order 19 Rule 2 CPC are attracted to an application filed for temporary injunction under Order 39 Rule 1 and that while the court has ample power to dispose of the matter on affidavit, the court also has jurisdiction to summon the deponent of the affidavit for cross-examination either suo moto or at the instance of any party, if the court comes to the conclusion that circumstances warranted summoning the deponent for cross-examination.
Issues: 1. Whether the court has the discretion to summon the deponent of an affidavit for cross-examination in an application for temporary injunction under Order 39 Rule 1 CPC? 2. Whether the Assistant District Judge erred in rejecting the defendant's application to cross-examine the plaintiff?
Ratio Decidendi: The court relied on the decisions of the Andhra Pradesh High Court in Srinivas Rao vs. Monohar Rao (AIR 1981 AP 406) and Ali Bin Aifan (AIR 1983 AP 114), which held that the provisions of Order 19 Rule 2 CPC are attracted to an application filed for temporary injunction under Order 39 Rule 1 and that the court has jurisdiction to summon the deponent of the affidavit for cross-examination.
Final Decision: The court allowed the petition, set aside the impugned order, and directed the Assistant District Judge to allow the defendant to cross-examine the deponent of the application under Order 39 Rule 1 CPC for grant of temporary injunction.
2. Plaintiff-opposite party No.l instituted Title Suit No. 12 of 1991 in the Court of learned Assistant District Judge No.l, Guwahati for a declaration that the plaintiff has equal right, title and interest in the business of M/s Dipti Gas Agency as joint partner/proprietor of the same and that the defendant No.l was not the sole proprietor, and also for a permanent injunction restraining the defendant No.l and/or his agent, men, servant from preventing the plaintiff from taking part in managing and running business of M/s Dipti Gas Agency and alternatively for a decree for recovery of Rs. 50,000/- with interest @6^% from the date of filing of the suit till realisation.
3. The case of the plaintiff as stated in para 1 of the revision petition are as follows :-
“...... ,, The plaintiff/opposite party No.l's case as stated in the plaint is, inter alia, that the petitioner/defendant No.l took a loan of Rs.50,000/-from the plaintiff/opp.party No.l agreeing to take the plaintiff/opposite party No.l as partner with right to manage and run the business of L. P.O. distributorship under the name and style M/s Dipti Gas Distribution, that the petitioner /defendant No.l was appointed distributor of Liquified Petrolium Gas for Dispur area, Gauhati and accordingly an agreement was executed between the proforma opposite parties No,2 to 4 and the petitioner/defendant No.l as sole proprietor of 'Dipti Gas Agency', that for all practical purposes the business of the firm M/s Dipti Gas Agency was a partnership venture of the plaintiff/opposite party No. 1 and the petitioner/defendant No.l, that on 16.8.90 the petitioner/defendant No.l prevented the plaintiff/opposite party No.l from taking part in the business of M/s Dipti Gas Agency."
In the affidavit-in-opposition filed by the plaintiff/opposite party No.l, the facts stated in paragraph 1 of this petition has not been specifically controverted or denied.
4. The plaintiff/opposite party also filed an application under Order 39 Rule 1 read with section 151 of the Code of Civil Procedure for grant of ad-interim injunction pending disposal of the suit, which was registered as Misc. (J) Case No. 13 of 1991 in T.S.No. 12 of 199!. The learned Assistant District Judge on the basis of the pleading in the plaint and the petition for granting of ad-interim injunction supported by an affidavit, issued an ex-parte temporary injunction on 9.2.91 restraining the defendant-petitioner from obstructing the plaintiff-opposite party No.l in taking part in management and business of M/s Dipti Gas Agency. The defendant-petitioner after receipt of the notice appeared and filed objection. The defendant-petitioner also filed an application under Order 19 Rule 2 CPC to cross-examine the plaintiff-opposite party for proper adjudication of the question of granting injunction. That prayer was objected to by the plaintiff-opposite party and the learned Assistant District Judge, by the impugned order dated 24.5.91 rejected the said application. The defendant petitioner has thereafter approached this Court in this revision petition.
5. I have heard Mr. C.K.Sarma Barua, learned counsel for the petitioner and Mr. J.N.Sarma, learned counsel for the opposite party No 1.
6. Mr. C.K.Sarma Barua, learned counsel for the petitioner has submitted that the plaintiff-opposite party obtained an ex-parte injunction by suppressing facts and that some important documents are lying with the plaintiff. Under the circumstances, it was necessary to cross-examine the plaintiff. The learned counsel for the petitioner has submitted that on the same allegations the plaintiff-opposite party instituted T.S.No. 199 of 1990 i
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