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IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SUMAN SHYAM, J.
Sri Kandarpa Pathak S/o Late Rashadhar Pathak – Petitioner
Versus
Sri Mono Kanta Baruah – Respondent
CRP No. 144 of 2015
Decided On : 23-09-2016
PC - Order VI Rule 15 of - Order XIX Rule 2 - Evidence Act, 1872 - Sections 3 and 138 - Civil Procedure Code,1908 - Order VI Rule 17 - Recovery of khas possession - Cross-examination - Dispute between the parties - Petition has been preferred against order passed by Court of learned unsiff, Amingaon in Misc. Case No. arising out of T.S. No. whereby, petition filed by petitioners/defendants Order XIX Rule of CPC seeking leave to cross examine respondent no. was rejected - brief factual matrix of case is that respondent nos. - Plaintiffs, had earlier instituted T.S. No. in Court of No. , at against present petitioners and others seeking a decree of declaration of their right, title and interest over suit land and also for recovery of khas possession in respect thereof - During pendency of suit, plaintiffs had filed an application under Order VI Rule CPC seeking leave to amend plaint, inter-alia, on ground that it was only from written statement filed by defendant nos. that plaintiffs had come to know for first time that plaintiffs and their deceased brother had sold suit land to father-in-law and father of defendant nos - Respectively by registered sale deed bearing no - By way of proposed amendment, plaintiffs, therefore, wanted to seek relief in respect of sale deed no. declaring same to be void and inoperative in eye of law - Application was supported by an affidavit sworn by respondent no. – Held, Apparent that Rule of Order XIX adumbrates power of court to permit cross-examination of deponent/ declarant only when court requires a party to proceeding to prove any facts by means of evidence tendered on affidavit and pursuant thereto, some evidence is brought on record by means of affidavit to prove such fact - Underlying object of provision is to permit opposite side an opportunity to impeach such evidence introduced on affidavit and same is in conformity with principle underlying section 138 of Evidence Act, 1872. Order XIX Rule , therefore, cannot be invoked in a routine manner to cross- Examine deponent of each and every affidavit furnished in support of an application filed under code. What must also be borne in mind is that if a request under order XIX Rule CPC for cross-examination of deponent of affidavit is made by a party, court will also have to arrive at a satisfaction as regards bona fide of such prayer before allowing same - Court had not directed plaintiffs to prove any facts by affidavit nor did plaintiffs adduce any evidence on affidavit - Statements made in application under Order VI Rule 17 CPC cannot be treated as evidence merely because application was supported by an affidavit - Therefore, Order XIX Rule 2 of CPC was not at all attracted in facts of this case - Such being position, I am of considered opinion that learned trial court had rightly rejected applications filed by petitioners by holding them as untenable and no prejudice had been caused to petitioners on such count – Petition is accordingly dismissed
1. Heard Mr. A. Das, learned counsel for the petitioners. Also heard Mr. P.K. Deka, learned counsel representing the respondents.
2. This revision petition has been preferred against the order dated 03.03.2015 passed by the Court of learned Munsiff, Amingaon in Misc. (J) Case No. 196/2014 arising out of T.S. No. 64/2014, whereby, the petition filed by the petitioners/defendants under Order XIX Rule 2 of the CPC seeking leave to cross examine the respondent no. 1 was rejected.
3. The brief factual matrix of the case is that the respondent nos. 1 and 2, as plaintiffs, had earlier instituted T.S. No. 434/2013 in the Court of Munisff No. 1, Kamrup at Guwahati against the present petitioners and 4 others seeking a decree of declaration of their right, title and interest over the suit land and also for recovery of khas possession in respect thereof. During the pendency of the suit, the plaintiffs had filed an application under Order VI Rule 17 CPC seeking leave to amend the plaint, inter-alia, on the ground that it was only from the written statement filed by the defendant nos. 1 and 3 that the plaintiffs had come to know for the first time that the plaintiffs and their deceased brother had sold the suit land to the father-in-law and father of the defendant nos. 1 and 3 respectively by registered sale deed bearing no. 5390 on 17.11.1964. By way of the proposed amendment, the plaintiffs, therefore, wanted to seek relief in respect of sale deed no. 5390 declaring the same to be void and inoperative in the eye of law. The said application was supported by an affidavit sworn by the respondent no. 1.
4. On receipt of the copy of the application filed under Order VI Rule 17 CPC, the petitioners herein, who were the defendants no. 1 and 3 in the aforementioned Title Suit, had filed an application under Order XIX Rule 2 CPC on 05.01.2015 with a prayer to cross-examine the deponent i.e. the respondent no 1. It appears that the respondents/ plaintiffs did not file any objection against the application filed under Order XIX Rule 2 CPC which had prompted the petitioners to file a separate application dated 03.03.2015 bearing no. 384/2015 praying before the Court to allow the aforesaid application filed under Order XIX Rule 2 of the CPC, on the ground that the plaintiffs did not filed any objection nor sought time to file any objection in respect thereof. By the impugned order dated 03.03.2015, the learned Court below had disposed of both the applications by rejecting the prayer made by the petitioners/defendants. Hence, this revision petition.
5. Mr. Das, submits that the date on which the trial Court had passed the order dated 03.03.2015 was not fixed for hearing on the application filed under Order XIX Rule 2 of the CPC nor does the impugned order disclose any ground for rejecting the prayer made by the petitioners. As such, it was evident that the impugned order dated 03.03.2015 has been passed without hearing the petitioners on the main application filed on 05.01.2015 seeking leave to cross examine the plaintiff no.1 nor is there any valid reason cited by the Court below for rejecting the prayer.
6. By referring to the provisions of Section 30 as well as Order VI Rule 15 of the PC, Mr. Das submits that the Civil Court has ample powers to direct a party to prove any fact by way of affidavit and it is also the mandate of law that every pleading is required to be verified and the person verifying the pleading shall also have to file an affidavit in support of his pleadings. Referring to the grounds taken in the application filed under Order VI Rule 17 CPC, Mr. Das submits that the entire basis of the application is founded on utter falsehood inasmuch as the plaintiffs being the neighbours of the defendants, it cannot be believed that they were unaware of the registered deed of sale executed way back in the year 1964 and that is the reason why it had become necessary for the petitioners to cross examine the deponent of the said a
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