IMPORTANT POINT
No cross-examination of affiants on the affidavits filed with the application under Order 39 Rule 1 and 2 CPC and reply thereto is contemplated.

1. Heard counsel for the petitioner-plaintiff-applicant (hereafter ‘the applicant’) and perused the impugned order dated 29.4.2017 whereby the application filed for allowing cross-examination of the respondent-defendant-non applicant no. 1 (hereafter ‘the non applicant’) on his affidavit in support of reply to the application under Order 39 Rule 1 and 2 CPC has been dismissed by the trial court.

2. Mr. Pratap Singh Sirohi, counsel appearing for the applicant has placed reliance on the judgment of Madhya Pradesh High Court in the case of Gulabchand Jain and others Versus Khushal Chand and Others reported in AIR 1992 Madhya Pradesh 264 to submit that law inter-alia contemplates cross-examination of the affiants who file affidavits in support of reply to the application under Order 39 Rule 1 & 2 CPC. Mr. PS Sirohi further submitted that in the instant case the issue in the application under Order 39 Rule 1 and 2 CPC filed by the applicant was complex and related to fraud at the instance of non applicants no. 1 and 2 in collusion with non applicant no.3 to side-track the conditions of eligibility for grant of LPG distributorship in Shahpura District Jaipur and hence even at the interlocutory stage no just decision only on affidavits could be reached but required cross-examination of the affiants. Counsel further submitted that the application for interim injunction under Order 39 Rule 1 and 2 CPC is of seminal importance as the rejection thereof would entail the conspirators non applicants no. 1, 2 and 3 succeeding in their nefarious design of grant of LPG distributorship to the applicant no.3 despite her ineligibility both on the ground of not having in her own name the requisite parcel of land nor having the essential deposit of Rs. 10.00 lakh in her bank account on the last date of filing the application for grant of LPG distributorship. Mr. Pratap Singh Sirohi submitted that the application for cross-examination of the affiants in support of reply to the application under Order 39 Rule 1 and 2 CPC was moved on 29.4.2017 soon after the filing of the reply to the amended application under Order 39 Rule 1 and 2 CPC yet has been dismissed on the failure of the trial court to exercise its jurisdiction. Hence this petition.

3. Per contra, Mr. J.P. Gupta appearing for the non applicants no. 1 and 2 Bharat Petroleum Corporation Limited and Mr. Hemant Kumar Gupta appearing for non applicant no.3, who has been allotted the LPG distributorship in Shahpura District Jaipur submitted that applicant has no inviolable and absolute right in law to demand cross-examination of an affiant, who files an affidavit in support of reply to application under Order 39 Rule 1 and 2 CPC. Mr. J.P. Gupta submitted that such applications are to be decided on affidavits and other materials such as documents on record and cross-examination on affidavits filed is not contemplated under the scheme of the CPC at that stage. Counsel drew the attention of this Court to Order 39 Rule 1 and 2 CPC, which states that 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,

(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 as the Court thinks fit until the disposal of the suit or until further orders.

4. Mr. J.P. Gupta then submitted that the jurisdiction of the trial court on an application under Order 39 Rule 1 and 2 CPC is based on prima-facie view o