Written arguments cannot be treated as pleadings or affidavits, and summoning a witness for cross-examination is not permissible at the stage of deciding an application under Order XXXIX Rule 1 & 2.

ORDER

1. By way of present writ petition, petitioners have challenged the order dated 06.12.2021, whereby application dated 30.11.2021 filed by the present petitioner - defendant No.1 under Order XIX Rule 1 & 2 of the Code of Civil Procedure (for short 'the Code') has been dismissed.

2. The facts in brief are that the plaintiff (respondent No.1 herein) instituted a suit for cancellation of sale deed along with an application under Order XXXIX Rule 1 & 2 of the Code.

3. During the pendency of application for grant of temporary injunction under Order XXXIX Rule 1 & 2 of the Code, respondent - plaintiff submitted written arguments in which it was indicated that co-defendants Smt. Tara Devi, Vimla, Anita, Sunita et. al. have stated in para No.22 of their written statement that the power of attorney dated 20.12.2003 had been withdrawn and an intimation to this effect was given to the defendant No.1 - Ashok Kumar Modi (petitioner herein) on 12.01.2005.

4. In relation to para No.2 of the written arguments, the present petitioner moved an application under Order XIX Rule 1 & 2 of the Code and submitted that the plaintiff be called in the witness box for cross-examination.

5. Learned trial Court rejected petitioner's above application dated 30.11.2021, inter alia, observing that the written arguments is neither a part of the pleadings nor is it supported by an affidavit, hence cross-examination cannot be permitted.

6. Challenging the order dated 06.12.2021 Mr. Sanjeet Purohit, learned counsel for the petitioners argued that according to the provisions of Order XIX Rule 1 & 2 of the Code of Civil Procedure 1908, the trial Court ought to have summoned the plaintiff in the witness box for the purpose of his cross-examination.

7. It was also argued by Mr. Purohit that such fact was not disclosed by the plaintiff in his plaint and therefore, the application of the defendant - petitioner No.1 deserved acceptance.

8. Mr. Dhanesh Saraswat, learned counsel for the respondents on the other hand argued that firstly, the averments made in para No.2 are part of written arguments, which were not supported by an affidavit and that apart, para No.2 makes a specific reference to the written statements filed by the co-defendants Smt. Tara Devi, Vimla, Anita, Sunita et. al. Therefore, the application under Order XIX Rule 1 & 2 of the Code of Civil Procedure filed by the plaintiff was misconceived.

9. Having heard learned counsel for the parties and upon perusal of the material available on record, this Court is of the considered view that the trial Court has committed no error of law inasmuch as written arguments cannot be treated to be pleadings or affidavit, for which a party can be called in the witness box for cross-examination.

10. That apart, a perusal of para No.2 of the written agreement clearly shows that plaintiff had made reference to para No.22 of the written statement filed by the co-defendants and therefore, the application under consideration was totally misconceived. No purpose could have been served by calling the plaintiff in the witness box.

11. In the opinion of this Court, at the time of deciding an application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, summoning a witness for cross-examination is not permissible in view of what has been contained in rule (3) of Order XIX.

12. The same can be done only at the time of leading of the evidence and subsequently if the Court deems it expedient while finally hearing the suit.

13. The writ petition is, therefore, dismissed.

14. Stay petition also stands dismissed accordingly.