Sudhir Kumar vs Asha - 1995 Supreme(MP) 639

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1995 Supreme(MP) 639

1995 JLJ 635
J.G. Chitre, J.
Sudhir Kumar and another v. Smt. Asha
C.R. No. 59 of 1994; Decided on 18.7.1995.

Advocates:
A.K. Sethi with Rajendra Sugandhi for applicants; V.K. Shah for non-applicants.

Headnote:Civil P.C., 1908 -- O. 19 R. 2 -- party desiring to cross-examine deponent on his affidavit -- opportunity for cross examination should be given -- it is also necessary in view of principles of natural justice.
        Such opportunity needs to be given to such desirous party after Court satisfying itself whether such prayer for cross-examination has been made bona fide or for playing delaying tactics. I do not agree with the views taken by Gujrat and Mysore High Courts in the judgments quoted in view of reasoning mentioned hereunder. Had there been a total ban to cross-examination of such deponent, the legislature would not have provided R. 2 to O. 19 after R. 1. In R. 1, it has been indicated that 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 witnesses may be read at the hearing on such condition as Court thinks reasonable. Proviso to this rule indicates that if the Court finds that either party desires the production of witnesses for cross-examination bona fide and that such witnesses can be produced, an order shall not be made authorising evidence of such witness given by affidavit. AIR 1968 Guj. 198 and AI R 1959 Mys. 139 dissented from. 1992 JLJ 57 and 1967 JLJ 894 relied on. [Para 6
        Keeping in view rule of natural justice also such opportunity needs to be given and more particularly when the affidavits produced are vague. [Para 8
        flfoy izfØ;k lafgrk] 1908 && vk- 19 fu- 2 && vfHklk{kh dh mlds ‘kiFki= ij izfrijh{kk djus dh i{kdkj dh okaNk && izfrijh{kk ds fy, volj fn;k tkuk pkfg, && uSlfxZd U;k; ds fl)karksa dh n`f"V ls Hkh vko‘;d gSA
        ,slh okaNk djus okys i{kdkj dks ,slk volj U;k;ky; }kjk Lo;a dk ;g lek/kku fd, tkus ij fn;k tkuk vko‘;d gS fd izfrijh{kk ds fy, ,slk vuqjksk ln~HkkoiwoZd fd;k x;k gS vFkok foyac dh ;qfDr ds :i esa fd;k x;k gSA ,rn/khu mfYyf[kr rdksZa dks n`f"Vxr j[krs gq,] m)`r fu.kZ;ksa esa xqtjkr rFkk eSlwj mPp U;k;ky;ksa }kjk viuk, x, n`f"Vdks.kksa ls eSa lger ugha gw¡A ;fn ,sls vfHklk{kh dh izfrijh{kk ij iw.kZ ikcanh gksrh rc fo/kku eaMy }kjk vk- 19 esa fu;e 1 ds i‘pkr~ fu- 2 micaf/kr ugha fd;k tkrkA fu- 1 esa minf‘kZr fd;k x;k gS fd fdlh Hkh U;k;ky; }kjk fdlh Hkh le; i;kZIr dkj.k ds fy, vkfn"V fd;k tk ldrk gS fd fdlh fof‘k"V rF; vFkok rF;ksa dks ‘kiFki= }kjk lkfcr fd;k tk, vFkok ;g fd fdUgha Hkh lkf{k;ksa dk ‘kiFki= lquokbZ esa ,slh ‘krZ ij i<+k tk, tks U;k;ky; }kjk ;qfDr;qDr le>h tk,A bl fu;e ds ijarqd ls minf‘kZr gS fd ;fn U;k;ky; }kjk ik;k tk, fd nksuksa esa ls dksbZ ,d i{kdkj dh ln~HkkoiwoZd okaNk gS fd izfrijh{kk ds fy, lk{kh izLrqr fd, tk,¡ rFkk ,sls lk{kh dks izLrqr fd;k tk ldrk gS] rc ,sls lkf{k;ksa ds ‘kiFki= }kjk fn, x, lk{; dks izkf/kd`r djrs gq, vkns‘k ugha fn;k tk,xkA , vkb vkj 1963 xqt- 198 rFkk , vkb vkj 1959 eSlwj 139 folEerA 1992 ts ,y ts 57 rFkk 1967 ts ,y ts 864 voyafcrA ¿ iSjk 6
        uSlfxZd U;k; ds fu;e dks Hkh n`f"Vxr j[krs gq,] ,slk volj fn;k tkuk vko‘;d gS] fof‘k"Vr% tc izLrqr fd, x, ‘kiFki= vLi"V gSaA ¿ iSjk 8

ORDER

1. Short point which is to be decided in this revision is "when the private parties have filed affidavits for decision of the interlocutory application, whether any of those parties is entitled to get witness of rival party for cross-examination in context with affidavit filed by him."

2. Shri A.K. Sethi, appearing for the petitioners placed reliance on the judgment of this Court in matter of Gulab Chand Jain & ors. v. Khushalchand & ors. reported in 1992 JLJ 57 wherein this Court has held –

"opportunity of cross-examination to be granted or refused is in discretion of the Court and if from the conduct and circumstances of the parties, it appears to the Court that the opportunity for cross-examination is being sought for delaying decision and for protracting the proceedings, the Court would decline to permit the cross-examination."

In the said matter this Court has considered the judgment of this Court in the matter of Mithailal Gupta v. Inland Auto Finance, a Division Bench judgment reported in 1967 JLJ 864, wherein it has been held by this Court that-

"Witnesses must be examined in open Court viva-voice Exceptions are:

(i) Where there is an agreement to take evidence by affidavit; (ii) when there is an order of the Court to prove certain facts by affidavit, or (iii) when there is an order by examination by interrogatories before a Commissioner."

This Court further observed in the said matter that -

"Rule 2 O. 19 of Code of Civil Procedure enables evidence to be given by affidavit upon an interlocutory application. An affidavit must he confined to the particular facts to be proved and such facts as the witness is able from his own knowledge to prove. An affidavit differs from a deposition inasmuch as, in the later, the opposite party has always an opportunity to cross-examine the deponent but an affidavit is taken ex-parte, where the adverse party desired production of the deponent for cross-examination the Court should ordinarily order attendance of the deponent for cross-examination."

3. Shri V.K. Shah counsel appearing for opponent placed reliance on the judgment of Gujrat High Court in the matter of Kanbi Mavji Khimju and another v. Kanbi Abjibhai and ors. reported in AIR 1968 Guj 198 wherein Single Bench of Gujrat High Court has held that -

"A perusal of the wording of Rule 1 of O. 39 clearly indicates that in interlocutory applications for interim injunctions, the Court has been expressly permitted by the legislature itself to decide such applications on affidavits, if the Court on affidavit finds that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or being wrongfully sold in execution of a decree, the Court is entitled to grant such ad-interim injunction. Either party, therefore, cannot lay any claim or urge that it has got a right to cross-examine the deponent."

Shri Shah further placed reliance on the judgment in the matter of Mysore High Court in the matter of B.N. Munibasappa v. G.D. Swamigal reported in AIR 1959 Mys. 139 in substantiating his arguments.

4. Rule 1 O. 39 provides –

"Where in any suit it is proved by affidavit or otherwise - (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to (defrauding) his creditors, or (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit),

the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property (or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit) as the Court t

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1995 Supreme(MP) 639

1995 JLJ 635J.G. Chitre, J.Sudhir Kumar and another v. Smt. AshaC.R. No. 59 of 1994; Decided on 18.7.1995.

1995 JLJ 635
J.G. Chitre, J.
Sudhir Kumar and another v. Smt. Asha
C.R. No. 59 of 1994; Decided on 18.7.1995.