M.C. Jain, Actg. C.J.—Honble the Chief Justice vide his order dated 10.4.89 has referred the following question to be decided by a larger Bench :

"Whether the provisions of Order 19, C.P.C. apply for deciding an application for grant of temporary injunction under Order 39, C.P.C?"

2. The learned Chief Justice noticed conflict between a Single Bench decision of this Court in Kusum Kumar Choudhary vs. Supra Films (1) and the Single Bench decision of the Andhra Pradesh High Court in Ali Bin Aifan (2) in which reference was made to some other decisions and the learned Chief Justice also made reference to a Division Bench decision in Kanhaiyalal vs. Meghraj (3). In the Andhra Pradesh decision it was held that the Order 19, C.P.C. is applicable for deciding the application under Order 39, C.P.C. and in the Nagpur Division Bench decision the expression "any application" in Order 19, Rule 2, C.P.C, was held to mean "any application" under the Code since the Code itself does not define the word "application" nor does it make any distinction between one application and another. In view of these decisions Honble the Chief Justice was of the view that it would be proper to reconsider the correctness of the view taken in Kusum Kumar Choudhary vs. Supra Films, (supra) wherein the learned Judge took the view that provision of Order 19 Rule 2 C.P.C. is not applicable to an application for grant of temporary injunction under Order 39, C.P.C.

3. We have heard Shri B.L. Pagaria, learned counsel for the petitioner. Nobody has put in appearance on behalf of the respondent.

4. In Kusum Kumar Choudhary vs. Supra Films (supra) reliance was placed on Kanbi Mavji Khinji vs. Kanbi Manjibhai Abjibhai (4). The controversy in issue was whether in deciding an application under Order 39 Rule 1 C.P.C, the provisions of Order 19 Rules 1 and 2 C.P.C. can be pressed into service or not. In the Gujarat case referred to above the learned Judge reached a conclusion after considering the combined effect of Sec. 30 and Order 19 Rule 1 & 2 that only in cases where the court exercise general power of ordering facts to be proved by affidavit either of its own motion or on the application of any party, that power is to be exercised subject to the conditions and limitations imposed under Order 19 Rules 1 & 2. The learned Judge further observed that there are some provisions in the schedule where the Court has been expressly permitted to decide certain matters on affidavits only and Order 39 Rule 1 was cited as one of the instances of such provisions. The learned Judge also noticed that there is no provision in Order 39 Rule 1 that the exercise of powers is subject to the conditions and limitations prescribed in Order 19 Rule 1 & 2 Chhangani, J. extracted the conclusion arrived at in the Gujarat case while deciding Kusum Kumar Chhoudhary vs. Supra Film., (supra). Contrary view was not cited before Chhangani J. so Chhangani J. accepted the view taken by the Gujarat High Court in the afore said decision. We have been referred to a direct decision of Andhra Pradesh High Court in Ali Bin Aifan (supra) and another and a Division Bench decision in Kanhaiyalal vs. Meghraj (supra). In both these decisions the provisions contained in Order 19 Rule i & 2 Sec. 30 C.P.C. have been considered. It would be proper to refer to Order 19 Rule 1 & 2. Rule 1 & 2 read as under :-

1. Power to order any point to be proved by affidavit-Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing on such conditions as the Court thinks reasonable :

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made, authorizing the evidence of such witness to be given by affidavit.

2. Power to order attendance of dependent for cross-examin-ation.-(l) Upon any ap

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