1984 Supreme(MP) 476

G. L. Oza, Ag. CJ.
Champa v. Hiralal.
C. R. No. 194 of 1984 (I); Decided on 16-8-1984.

Headnote:(1) Civil P. C., 1908 -- O. 39, Rr. 1, 2 and 3A -- Court is bound to dispose of injunction application on affidavits and documents produced -- cannot order recording of evidence -- purpose of Rule 3-A is to dispose of such application within thirty days.

        (2) Civil P.C., 1908 -- O. 19, R, 2 and O. 39, Rr. 1 and 2 -- petition under O. 39, Rr. 1 and 2 -- provisions of O.19 R. 2, are attracted.

        It appears that the applicant-plaintiff filed a suit for perpetual injunction in respect of certain agricultural lands and also made an application under Order 39 Rules 1 & 2 Code of Civil Procedure, for grant of temporary injunction. It appears that ex-parte temporary injunction was granted in the year 1980 and notices were issued but before the confirmation of this order the learned judge passed the impugned order as it appears that the learned judge felt difficulty about deciding the question of possession and therefore directed that evidence he recorded of both the parties. Against this order the present revision petition is filed.

        Held : Under Order 39, Rules 1 and 2 ordinarily a Court is expected to dispose of the matter for grant of temporary injunction on the basis of affidavits and documents filed by parties.

        It is clear from the language of this rule that the court is bound to dispose of these applications on affidavit and not to proceed to try the application as a suit itself by directing the parties to lead evidence. It also appears that rule 3-A has been added to order 39 indicating the Court that such application should be disposed of as far as possible within thirty days. This amendment of Order 3 therefore, clearly indicates that the Court is bound to dispose of these applications on affidavits and not to embark upon a trial by recording evidence.

        It appears that to meet such peculiar contingencies when petitions are to be decided on affidavits, Order 19 has been provided. It provides that where any fact has to be proved by affidavits, the Court on application of either of the parties may call upon the witnesses to remain present for purposes of cross-examination. It is, therefore, clear that to the proceeding under order 39, Rule 1, Order 19 will be attracted and at best what the parties could have desired was of make a prayer for cross-examination of witnesses, who have sworn affidavit and who according to the parties needed to be cross-examined. Admitted in the present case, no such prayer was made and the court directed recording of evidence of its own probably feeling the difficulty about the disposal of the question of possession. In these circumstances, therefore, the order passed by the learned court below could not be maintained as apparently for disposing of an application under Order 39, Rule 1, the Court below is not expected to embark upon a trial which will result in piecemeal trial of the suit. When the suit itself is for perpetual injunction. It is, therefore, directed that the order passed by the learned Court below is set-aside and the case is sent back to the learned Court below. It is however, observed that if either of the parties feel. They make a prayer for calling such witnesses whose affidavits are on record for purpose of cross-examination as that is all that can be permitted under Order 19, Rule 2. Revision allowed.