1. This petition, filed as it is, under S. 115 of the Civil P. C., is directed against an order, dt. 10-4-1981 of the Munsiff and J. M. F. C., Mandya, on an interlocutory application (I. A. III) in 0. S. No. 113 of 1980 pending on the file of that Court. Petitioner Viswanath Singh is the plaintiff and respondent Shivalingaiah is the Ist defendant in the said suit. In that suit the plaintiff is claiming permanent injunction against the defendants in respect of the suit schedule land. The plaintiff had filed an application under 0. 39, Rr. 1 and 2 claiming temporary injunction on the ground that he was in possession of the land in dispute. The Munsiff issued notices to defendants regarding this. The 1st defendant, on entering appearance, filed I. A. III under 0. 19, R. 1 of the Code seeking permission of the Court to file a few affidavits of the neighboring cultivators along with his objections opposing the plaintiff's claim for a temporary injunction. The plaintiff opposed 1. A. 111. While opposing I. A. III he urged that the contents of the affidavits cannot as such be taken into consideration unless persons swearing to the said affidavits are tendered for cross-examination and that, in the circumstances, affidavits need not be accepted at all. In this connection Counsel for the plaintiff also placed reliance on a decision of this Court in B. N. Munibasappa v. Gurusiddaraja Desikendra Swamigal, (AIR 1959 Mys 139). The Munsiff overruled the objections of the plaintiff, allowed 1. A. 111, and permitted the parties to get the affidavits of their witnesses filed in Court.
2. While challenging that order in revision the learned Counsel for the petitioner submitted that the order of the Munsiff is contrary to law and therefore deserves to be quashed.
3. Order 19 of the Code deals with affidavits Rules 1 and 2 of 0. 19 read as follows:
'1. Power to order any point to be proved by affidavits: Any Court may it any time for sufficient reason order that any particular fact or facts may be proved by affidavits or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.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'.
There is a clear distinction between Rr. 1 and 2. Affidavits contemplated in R. 1 are affidavits taken by way of evidence in order to prove a particular fact or facts. Prove or proof in the sense in which that word is used
in R. 1 means final proof and not prima facie proof. The following observations of the learned Author Sri. Sarkar in his book 'Law of Evidence' (12th Edition), at p. 29 may be noted:
'Prima facie evidence - only means that there is ground for proceeding, it is not the same thing as 'Proof' which comes later when the Court has to find whether the accused is guilty. Because a magistrate has found a prima facie case to issue process, it is a fallacy to say that he believes the case to be true in the sense that it is proved (Sher Singh v. Jitendra Nath : AIR1931Cal607 . Prima facie evidence which, if accepted appears to be sufficient to establish a fact unless rebutted by acceptable evidence to the contrary. It is not conclusive.'
4. Since it is final proof of a fact that is contemplated in R. I it is stated that if the other side desires that the witness, whose affidavit is placed before Court, should be produced for cross-examination the Court should not accept that evidence given in the form of an affidavit. That is why in the proviso to R. I it is stated that 'an order shall not be made authorising the evidence of such witness to be given by affidavit.' But, that is not the case in R. 2. Here discretion vests in the Court both in the matter of taking evidence by way of affidavits and also in ordering the attendance of those persons (deponents) for cross-examination. Further, if R. 1 contemplates affidavits in proof of facts R. 2 contemplates affidavits in support of or against applications. It is true that there are provisions in the Code and in several statutes providing for filing of applications claiming substantive reliefs. Any relief finally granted in such cases can be said to have been given on a particular fact or set of facts proved. To such cases, it can be said, R. I is attracted. But, R. 2 which does not contemplate any such proof of fact or facts may be construed as one applicable only to applications claiming interim reliefs like a temporary injunction, appointment of a receiver, appointment of a guardian ad litem and the like. Rules framed by High Courts also contemplate that an interlocutory application filed by a party should be supported by his affidavit. Averments in such an affidavit of a party is taken as a prima facie proof of the fact alleged in that application. If that is so why not affidavits of his witnesses for that limited purpose in order to find out as to whether there is or there has been a prima facie proof (not final) of that fact?
5. Now, to consider Munibasappa's case (AIR 1959 Mys 139) (supra). Facts in these two cases are different from each other. In the case on hand we are dealing with an interlocutory application. In Munibasappa's case the Court was dealing with a substantive application - an application made by the party aggrieved to set aside an exparte order. That application cannot be construed as an interlocutory application or an application for an interim relief pending adjudication on a final relief. Taking into consideration this aspect the learned Judge observes in Munibasappa's case at para 21 as follows:
'Now, what the learned Munsiff did in this case was to make an order, the effect of which was that all the facts which had to be proved by the parties in the proceeding before him should be proved by affidavits instead of their being proved by evidence produced in the ordinary way. It is clear that an order like that could never be made except by a misapplication of R. 1 of 0. 19'.
Though the learned Judge has observed in the latter part of para 17 that 'it would not be right to restrict the provisions of R. 2 of 0. 19 of the C. P. C., in cases to which that Rule applies only to interlocutory applications', a careful reading of the judgment in Munibasappa's case clearly shows of the learned Judge keeping in view the distinction between substantive applications and interlocutory applications, and, in particular, certain applications contemplated under the Code claiming interim reliefs like an attachment of property or temporary injunction. This is clear from his observations in the first part of para 17:
'In my opinion, while it would not be correct to say that an affidavit cannot be regarded as evidence even though it is property produced under R. 1 or 2 of 0. 19 of the C. P. C., it is clear that an affidavit can never take the place of evidence recorded in the ordinary way unless the case is one to which the provisions of those Rules apply or the affidavit relates to a matter like an application for an attachment or an injunction in regard to which the Code itself has made express provision'.
The Court further observed at para 24 sub Para (1):
'If one examines the provisions of Civil P. C. it is seen that it refers to specific instances where the Court is expressly permitted to act upon affidavits. Those are cases like those referred to in R. 19 of 0. 5, Rr. 8 to 20 of 0. 11, R. 3 of 0. 32, Rr. 1 and 5 of 0. 38 and R. 1 of 0. 39 of the Civil P. C. These are cases in which the production of an affidavit without more would enable the Court to act under the provisions I have referred to'.
As observed by the learned Judge that an application under 0. 39 can be dealt with only on the basis of affidavits without more. It can be said that to such a case it is not R. 1 of 0. 19 that applies but R. 2. In the instant case the Court below has kept in view that it was dealing with an interlocutory application under 0. 39, Rr. 1 and 2 and not a substantive one. Though the Court has not stated that it was permitting the parties to place affidavit evidence under 0. 19, R. 2 it may be fair to assume that it is so.
6. For the reasons mentioned above the order impugned herein does not call for any interference. This is not a fit case for admission. Therefore, this petition is not admitted and the same is hereby dismissed.
7. Petition dismissed.