ORDER

With consent heard finally.

1. The present petition is preferred under Article 227 of the Constitution at the instance of defendant taking exception to the order dated 17.10.2023 passed by the trial Court whereby application preferred by defendant under Order XIX rule 1 and 2 CPC is rejected.

2. Precisely stated facts of the case are that a suit for declaration and permanent injunction has been filed by the plaintiff (respondent No.1 herein) against the petitioner and respondents No. 2 to 23 with respect to the agriculture land at village Ranipura, Bahodapur, District Gwalior with the pleadings that the suit land is the ancestral property of the petitioner and respondents No. 1 to 22. Plaintiff is having 1/20th share therein. By filing the suit plaintiff sought declaration that the suit land is joint property of plaintiff and other defendants with a further relief to restrain petitioner and other defendants from creating third party right in the suit land without partition of the same.

3. An application under Order XXXIX rule 1 and 2 CPC for temporary injunction is also filed with the same averments. In support of application, plaintiff/respondent No.1 filed the affidavit of her own.

4. In rebuttal, petitioner/defendant filed reply to the said application for temporary injunction and submitted that before the revenue authority i.e. Tehsildar, Gwalior on dt. 11.1.2014, the plaintiff and her sister Gaura Rai (respondent No. 12 herein) jointly filed an affidavit that they have no concern with the suit land, they have relinquished their share in favour of their brothers and they would never claim their share in future. In response thereof, petitioner filed an application under Order XIX rule 1 and 2 CPC and prayed for cross-examination of plaintiff/respondent No.1 with respect to the affidavit filed by the plaintiff in support of her application under Order XXXIX rule 1 and 2 CPC. The court below rejected the petitioner's application vide impugned order dated 17.10.2023 with the reason that affidavit has not been filed by the plaintiff/respondent by the order of court, therefore, plaintiff cannot be called in the dock as witness. Therefore, against the said order, petitioner as defendant is before this Court.

5. It is the submission of learned counsel for petitioner that trial Court erred in passing the impugned order and caused illegality. When an application under Order XXXIX rule 1 and 2 CPC is preferred at the instance of plaintiff and if any particular fact is required to be clarified in the interest of justice, then invoking provisions as contained in Order XIX (Affidavits) would further the cause of justice to the extent that any particular fact or facts may be proved by calling the deponent for crossexamination on that particular fact. There is no bar as such in calling the witness for cross-examination at the stage of deciding application for temporary injunction under Order XXXIX rule 1 and 2 CPC. According to him, rule 2 of Order XIX specifically provides the mechanism to ensure attendance of deponent for cross-examination.

6. Learned counsel refers the contents of application filed in this regard by the petitioner before trial Court to submit that petitioner intends to cross-examine the plaintiff only in respect of her earlier undertaking given before Tehsildar. Therefore, trial Court erred in passing the impugned order.

7. In support of his submissions, he relied upon the judgment of this Court in the case of Sudhir Kumar and another v. Smt. Asha, 1995 JLJ 635. Learned counsel for petitioner further refers rule 2 of Order XIX to say that Rule 2 is very exhaustive in nature and both parties can move appropriate application in this regard. Even otherwise, rule 1 of Order XIX gives power to the court to take suo moto cognizance but it does not bar the parties to move application. It does not bar the Court to consider that application.

8. Shri Kamal Mangal, learned counsel appearing for contesting respondent No.1 opposed the