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Sakalabhaktula Vykunta Rao and ors. Vs. Made Appalaswamy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 82 of 1977
Judge
Reported inAIR1978AP103
ActsCode of Civil Procedure (CPC), 1908 - Order 19, Rules 1 and 2 - Order 39, Rule 1
AppellantSakalabhaktula Vykunta Rao and ors.
RespondentMade Appalaswamy
Appellant AdvocateN.V. Ranganadham, Adv.
Respondent AdvocateC.N. Babu, Adv.
Excerpt:
civil - permanent injunction - order 19 rules 1 and 2, and order 39 rule 1 of code of civil procedure, 1908 - petitioner filed revision against refusal of summoning deponent for cross-examination - order 39 rule 1 gives unfettered power to court to decide matters by affidavits - petitioner as matter of right not entitled to call deponent for cross-examination with reference to averments made in affidavit - revision petition dismissed. - - 990/75 dealt with the question that if the court itself finds it essential for arriving at the truth of the matter and require the deponent to be examined, then the opposite party should be given an opportunity to cross-examine the deponent even in an interlocutory matter like the one under o......no. 369/1976 for the grant of temporary injunction pending disposal of the suit. the plaintiff filed some affidavits in support of the above mentioned i.a. one of the affidavits was given by the village karnam. the learned district muncif granted interim injunction and issued notice to the respondents-defendants who are the petitioners herein. the petitioners after receiving the notice, filed a petition for vacating the interim injunction. the petitioners-defendants filed i.a. no. 470/1976 requesting the court to summon the village karnam so that they would cross- examine him, as his affidavit contained certain false averments. this petition was opposed by the respondents-plaintiff. the learned district muncif gave the following reasons for dismissing it : ' absolutely there is no.....
Judgment:
ORDER

1. This revision is directed against the order passed by the District Muncif, Tekkali in I.A. No. 470/1976 in O.S. No. 75/1976.

2. The petitioners are the defendants 1 and 2 in the suit O.S. No. 75/1976 which was filed for permanent injunction. Along with the suit, the plaintiff filed I.A. No. 369/1976 for the grant of temporary injunction pending disposal of the suit. The plaintiff filed some affidavits in support of the above mentioned I.A. One of the affidavits was given by the Village Karnam. The learned District Muncif granted interim injunction and issued notice to the respondents-defendants who are the petitioners herein. The petitioners after receiving the notice, filed a petition for vacating the interim injunction. The petitioners-defendants filed I.A. No. 470/1976 requesting the Court to summon the Village Karnam so that they would cross- examine him, as his affidavit contained certain false averments. This petition was opposed by the respondents-plaintiff. The learned District Muncif gave the following reasons for dismissing it :

' Absolutely there is no allegation to the effect that affidavits filed in support of the plaintiff's case are conflicting and that the deponents of such affidavits are absolutely necessary for cross-examining them. The apprehension of the petitioners seems to be that the Village Karnam is sailing with the plaintiff and that it is possible for him to tamper the Village Accounts. Their apprehension in that regard seems to be unfounded'.

It is this order that is assailed in this revision.

3. Sri Ranganatham, the learned counsel for the petitioners, contended that the petitioners are entitled to cross-examine the deponent with reference to the facts mentioned in the affidavit, as the petitioners felt that the affidavit contained false averments and as the Village Karnam brought into existence the adangals to fabricate the evidence in support of the plaintiff's case. He also contends that O. 19, Rr 1 and 2 C.P.C., give such power to the Court and hence the learned District Muncif committed jurisdictional error in not exercising the power given to it. He further contends that the reasons given by the learned District Muncif are contrary to law, as it is not necessary for the petitioners to show that the affidavits filed by the respondent-plaintiff are conflicting and that the Village Karnam may tamper the Village Accounts.

4. I do not think that the two reasons given by the lower Court refusing to summon the deponent who gave the affidavit to facilitate the petitioners-defendants to cross-examine him with reference to the averments in the affidavit are acceptable. It is not the law that if the affidavit s are conflicting, then the deponents should be summoned for cross-examination. If the affidavits on which the plaintiff-petitioner relies happen to be conflicting, the Court without any hesitation places in reliance on them and refuses to grant temporary injunction. In such a case, the need for cross-examining the deponents does not arise at all. Even with regard to the second reason that the petitioners' apprehension that the Village Karnam tampers with the village accounts is unfounded. I have to say that it is irrelevant for the purpose of disposing of the petition.

5. But merely because the reasons given by the learned District Muncif for refusing to summon the deponents are unsustainable, it does not mean that the petitioners are entitled to be granted the relief prayed for, as the party, be it plaintiff-petitioner or defendant-respondent, cannot claim, as of right, the summoning of a person who gave an affidavit for the purpose of cross-examination when he desires the same. This legal position is quite clear from the provisions of O. 39, R. 1 C.P.C.

6. As stated above, the respondent plaintiff filed the above cited interlocutory application requesting the court to grant temporary injuction against the petitioners and also filed some affidavits in support of his contentions. Order 39, R. 1 C.P.C. provides expressly that the Court is permitted to dispose of the interlocutory application of affidavits. In view of the urgency involved in the matter, the regular procedure of examining the petitioner and his witnesses and respondent and his witnesses is dispensed with and the Court is given a special power to decide the matter by affidavits. Further, the scope of enquiry is quite limited and the rights of parties are not decided finally. That being the purpose of giving special power to the Court under O. 39, R. 1, the question of summoning the deponent for the purpose of cross-examination at the instance of a party under O. 19, Rules 1 and 2 does not arise at all. The power given to the Court under O. 39, R. 1 to decide the matters by affidavits is unfettered and is not subjected to the provisions of O. 19, Rules 1 and 2. In short, the provisions of O. 19, Rules 1 and 2 have no application at all to interlocutory matters governed by O. 39, R. 1. I am supported in this view by the decision of Gujarat High Court in Mavji Khimji v. Manjibhai, : AIR1968Guj198 . Before the learned single Judge, it was contended that deponent who gave affidavit in support of the interlocutory application filed for the grant of temporary injunction, should be summoned for the purpose of cross-examination. Repelling this contention, J. M. Seth, J., held that when the court was given special power to decide certain interlocutory matters by affidavit, that power is not subject to limitations and conditions prescribed by the provisions of Rules 1 and 2 of O. 19. If really the legislature intended to place any conditions, and limitations in exercise of that special power also, the Legislature could have used those words in O, 39, R. 1 of the Code. The object underlying it may be that right of the parties in such interlocutory applications are not decided finally. The parties are not going to suffer as only for certain limited purposes, these I. As. were being decided and the rights of the parties were not being finally decided and that appears to be the reason why no such conditions and limitations have been prescribed in exercise of that special power.

7. But Sri Ranganatham relies upon the decision of a single Judge of the Allahabad High Court in Abdul Hameed v. Mujee-Ul-Hasan, : AIR1975All398 and the decision of Madhava Rao, J. of this Court in C. R. P. No. 990/1975 dated 2-11-1976 (Andh Pra) in which, he followed the above cited decision of Allahabad High Court.

8. The decision of the Allahabad High Court in Abdul Hameed v. Majeed-Ul-Hasan, : AIR1975All398 and the decision of Madhava Rao, J., in C. R. P. No. 990/75 dealt with the question that if the Court itself finds it essential for arriving at the truth of the matter and require the deponent to be examined, then the opposite party should be given an opportunity to cross-examine the deponent even in an interlocutory matter like the one under O. 39 R. 1 C.P.C Hence these rulings cannot be said to have dealt with the same point which is the subject-matter of the case on hand. They are of no assistance to the petitioners. 'It is, therefore, clear that the petitioners are, as of rights, not entitled to any claim to call for the deponent for cross-examination with reference to the averments made in his affidavit. Hence, the contention of Sri Ranganatham that the Court below has committed an error in not exercising the right vested with it, is unsustainable. Though the reasons given by the learned District Munsif are unsustainable, yet the relief prayed for by the petitioners cannot be granted in view of the clear legal position discussed above. Thus I find no merits in the revision petition. It is therefore dismissed, but without costs.

9. Revision dismissed.


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