K.K. Varma, J.

2. Yesterday, an adjournment was given to him to enable him to cite case law laying down the appropriate conditions for making an order Under Order 19, Rule 2, Civil Procedure Code.

3. Shri Modi was heard fully on the question of admission along with case law cited by him.

4. This is a revision Under Section 115 of the Civil Procedure Code from an order dated 14-7-1990 of the District Judge, Morena, in C.S. No. 5-B/87 granting a prayer of the plaintiff, the Bank of India, to cross-examine defendant No. 2 Harsh Prakash Gupta on his affidavit, admittedly filed in the matter arising out of the plaintiffs application Under Order 40, Rule 1, Civil Procedure Code.

5. The background is as follows :

One Ganesh Prasad Dubey filed an affidavit in support of the plaintiffs application Under Order 40, Rule 1, Civil Procedure Code. The present applicants made an application Under Order 19, Rule 2, Civil Procedure Code for an order to permit them to cross-examine deponent Ganesh Prasad Dubey. That application was rejected. The present applicants filed a Civil Revision No. 64/1988. Vide the final order dated 2-1-1990, the Court allowed the revision petition and directed the present applicants to-renew their prayer for cross-examination. The applicants renewed, their prayer and the Court permitted them to cross-examine Ganesh Prasad Dubey on, 14-7 1990 when, on an oral request made on behalf of the plaintiff the learned trial Judge granted the permission to cross-examinee, applicant No. 2 Harsh Prakash Guptaon his affidavit dated 15-2-1988 and fixed 30th, July 1990. It is this order which has led to the present revision petition.

6. The applicants" learned counsel has submitted that the learned trial Judges older is interferable in revision because he made the, order without insisting upon a written application and without recording good or, sufficient reasons for granting the oral prayer made on behalf of the plaintiff.

Order 19 Rule 2, Civil Procedure Code runs as follows '

"2. Power to order attendance of deponent for cross-examination.

(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent

(2) Such attendance shall be in Court unless the deponent is exempted from personal appearance in Court or the Court' otherwise directs."

7. The plain meaning is that a party may give evidence, by affidavit upon any application The choice has been left to the party to give' evidence by affidavit . Here the rule does not speak of any order or direction by a Court to a party to give evidence by affidavit It is for a party to avail of the liberty of tiling an affidavit upon any application. It is also clear that the Court has been given a discretion to order the attendance for cross-examination of the deponent, if so desired by the opposite party. Here, there is no requirement that the party seeking an order for the attendance of the deponent of the opposite party) for cross-examination has to file an application in writing. A.1 the same tune, n has been left in the discretion of the Court where or not to order the attendance for cross-examination of such deponent. It is settled rule of practice that a discretion given to a Court has to be exercised judicially and judiciously, that is, not capriciously or arbitrarily.

8. In the instant case, the present applicants fought bitterly for their right to cross-examine the plaintiff- deponent so as advance their case in the matter of the plaintiff's application for appointment of a receive. Hence the rejection of the plaintiff's prayer to cross-examine applicant No. 2 Haresh Prakash Gupta would have attributed to an exercise of discretion in an arbitrary and capricious manner unless the order could have been justified on substantial grounds. Hence, the trial Court's mention of the fact that the plaintiff-deponent having been cross-examined on his affidavit, justified the ground of the inter