Ratio
In civil proceeding, the deponent of an affidavit could be compelled to come to the witness box for subjecting himself for cross-examination only when such person filed his affidavit as an evidence and not when it was filed only in support of an application.

Plaintiffs are the revision petitioners.

2. The plaintiffs filed the suit for declaration and other reliefs. Defendants 1, 2, 5 and 6 filed I.A.No.1005 of 2009 for interim injunction as if the second defendant purchased the suit property from the first defendant and the second defendant is in possession of the same. In that application, the plaintiffs filed I.A.No.371 of 2012 under Order XIX Rules 1 and 2 to permit them to cross-examine the deponent of the affidavit who filed I.A.No.1005 of 2009 and that application was dismissed and aggrieved by the same, this revision is filed.

3. Mr.P.Valliappan, learned counsel for the revision petitioners submitted that under Order XIX Rule 2, when an affidavit is filed in support of an application and when that party is not prepared to examine himself, the opposite party can seek permission of the court to cross-examine the deponent of the affidavit to prove his case and for that purpose, Order XIX Rule 2 is provided in the Code of Civil Procedure and that has not been properly appreciated by the court below and the application was dismissed. He relied upon the judgment in KANHAIYALAL v. MEGHRAJ (AIR 1954 NAGPUR 260) in support of his contention and submitted that Order XIX Rule applies to interlocutory applications and I.A.No.1005 of 2009 was filed by the respondents for injunction and in the affidavit, they referred to various documents and therefore, to prove that the second defendant was not in possession of the property, he has to be cross-examined and for that purpose, the present application was filed and that was not properly appreciated by the court below.

4. I am unable to accept the contention of the learned counsel for the revision petitioners. Order XIX Rule 19 of the Code of Civil Procedure deals with affidavits. Order XIX Rule 1 deals with the power of the court to direct any party to prove any particular fact by affidavit or affidavit of any witness may be read at the hearing and if the party desires the production of a witness for cross-examination and when such witness can be produced, the court should not allow the party to give evidence by affidavit. Order XIX Rule 2 deals with the power of the court to order the attendance for cross-examination of the deponent who gave evidence by affidavit upon any application.

5. In the judgment in MARNEEDI SATYAM v. VENKATASWAMI (AIR(36) 1949 MADRAS 689) it has been held that

"Though the Evidence Act is not applicable to affidavits, it does not mean that any affidavit of any person can go in as evidence 'proprio vigore' without necessity for him to enter the witness box."

In that judgment, the learned Judge observed that affidavits are not evidence except (a) where there is an agreement between the parties that evidence can be taken by affidavit, or (b) where under O.19, R.1, Civil P.C., there is an order of the Court that particular facts may be proved by an affidavit or that the affidavit of any witness may be read at the hearing.

6. The Honourable Supreme Court in the judgment in SUDHA DEVI v. M.P.NARAYANAN ((1988) 3 SCC 366) held as follows:-

"... affidavits are not included in the definition of 'evidence' in Section 3 of the Evidence Act and can be used as evidence only if for sufficient reason court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure."

7. Our High Court held in KANNAMMAL v. BAGYAMMAL (1998 (I) CTC 280) that the petition under Order XIX Rule 2 of the Code of Civil Procedure cannot be maintained when an affidavit is filed only in support of the application and not as evidence as contemplated under Order XIX Rule 2. This has been elaborately dealt with by the learned Judge in the judgment in SREE RAMAVILAS SPINNING AND WEAVING MILLS (P) LTD. v. VIRUDHUNAGAR TEXTILES (2011 (1) MWN (CIVIL) 781) as follows:-

"It is an everlasting principle of law that an Affidavit can be termed to be an evidence within the ambit of Section 3 of the Indian Evidence Act only in those cases, where t