1. This is a petition to revise an order of the learned First Additional Judge City Civil Court, Hyderabad dismissing an application filed by the petitioners herein for summoning the respondent for cross-examining her with regard to the averments made by her in the counter affidavit filed in I. A. No. 204 of 1972 in O. S. No. 493 of 1970.
2. The relevant facts are as follows : The respondent filed the suit O. S. No. 493 of 1970 for partition and recovery of share in the suit properties. It appears that the suit was called on 11-2-1972 and the petitioners-defendants 1 and 2 were set ex parte and the suit was posted to 15-2-1972 for respondent-plaintiff's evidence. The counsel for the petitioners filed an application. I. A. No. 174 of 1972 supported by an affidavit for setting aside the ex parte order. The reasons set out in the affidavit were that the counsel was held up in the High Court that by the time he could attend the City Civil Court, the case was called and the petitioners were set ex parte, that his absence was not due to any willful negligence or default, and that there was sufficient cause for his not being able to be present when the suit was called. This application was opposed by the respondent by filing a counter affidavit traversing the allegations made in the affidavit. In the last paragraph of the counter affidavit, it was stated by the respondent as follows :
' Under the above circumstances, this plaintiff submits that the ex parte order passed against the defendants Nos. 1 and 2 on 11-2-1972 may be set aside, not because there are valid grounds for doing so but because of affording an opportunity to the minor defendant to effectively prosecute these proceedings. '
3. The application, I. A. No. 174 of 1972 was allowed and the order dated 11-2-1972 setting the petitioners ex parte was set aside subject however to the condition that the petitioners should pay costs.
4. The petitioners then filed I. A. No. 204 of 1972 for reviewing the order awarding costs in I. A. No. 174 of 1972. This petition was filed by the counsel for the petitioners as a verified petition. In this petition it was stated that there were no grounds for awarding costs. A counter affidavit was filed by the respondent opposing the said petition for review. In this counter affidavit several averments were made stating that the counsel for the petitioners were delaying the proceedings by adopting dilatory tactics, that they were also grossly negligent in absenting themselves when the suit was called and that the petition was liable to be dismissed with costs to be paid by the counsel of the petitioners. At that stage the counsel for the petitioners filed a verified petition. I. A. No. 276 of 1972 under Order 19, Rule 2, Civil P. C. Read with Rule 46 of Civil Rules of Practice for summoning the respondent for cross-examining her with regard to the averments made in her counter affidavit in I. A. No. 204 of 1972. This was opposed by the respondent by filing a counter affidavit. The lower Court dismissed the application holding that as there was no rejoinder affidavit filed by the respondent in I. A. No. 204 of 1972 denying the allegations made in the said counter, it was not necessary to summon the respondent, for cross-examination. It is in this order that is now challenged in this revision petition.
5. It is contended by Sri T. Ramachandra Rao, the learned counsel appearing for the petitioners, that the lower Court erred in refusing to summon the respondent for cross-examination and that the view taken by the lower Court that because no rejoinder was filed to the counter affidavit, there was no necessity to summon the respondent for cross-examination is erroneous. He also submits that under Order 19, it is incumbent upon the Court to summon the deponent of the affidavit when the party desires to cross-examine the deponent.
6. Sri Brahmanandam, the learned counsel appearing for the respondent submits that as the averments in the counter affidavit were not denied by filing a rejoinder, it is not open to the petitioners to cross-examine the respondent with regard to the averments made in the counter affidavit. Order 19 reads as follows :
'1. Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, 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 witness for cross-examination, and that such witness can be produced, an order shall be made authorising the evidence of such witness to be given by affidavit. 2. (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 dependent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.xx xx xx xx xxxx xx xx xx xx
7. From the aforesaid provisions it is clear that affidavit evidence could be taken by the Court on any application, but if any party desires to cross-examine the deponent of the affidavit, the Court may order the attendance of the deponent for cross-examination. In the instant case the petitioners desire to cross-examine the respondent with regard to certain averments made by her in the counter affidavit. Under Order 19 Rule 2 of the Code of Civil Procedure it is incumbent upon the Court to summon the respondent for cross-examination, In Gooru Narayana v. Lakshmayya, AIR 1939 Mad 927 Burn J. Held that :
'Affidavits cannot properly be acted upon parties agree to have them treated as evidence.
8. In that case as the petitioners objected to certain statements made in the affidavits filed on behalf of the respondent therein, it was held the lower Court should have summoned the witness for cross-examination.
9. In Vinayak Pandurangarao v. Sheshadasacharya Ramacharaya, AIR 1945 Bom 60 Wadia and Rajadhyaksha. JJ. Held that :
'Under the provisions of Order 19 Rule 1 no doubt it is open to the Court to allow a fact to be proved by affidavit, but where either party bona fides desires the production of the witness for cross-examination and such witness can be produced, it is not open to the Judge to allow the matter to be proved by affidavit. '
10. In the instant case the petitioners desire to cross-examine the respondent with regard to the averments made by her in the counter affidavit. It cannot be said that the request for summoning the respondent for cross-examination is not bona fide. Therefore, the lower Court should have exercised the jurisdiction vested in it under Order 19 Rule 2 Civil P. C. And allowed the petition for summoning the respondent for cross-examination.
11. It is, however, contended by the learned counsel appearing for the respondent that inasmuch as there was no rejoinder filed to the counter affidavit filed by the respondent in I. A. No. 204 of 1972, there was no necessity to summon the respondent for cross-examination. This is the main reason given by the lower Court for refusing to summon the respondent for cross-examination. But I do not think this reasoning can be accepted. Firstly there is no provision of law under which a rejoinder could be filed to a count affidavit filed in her interlocutory application. Sri Brahmanandam relies upon Section 141 of the Code of Civil Procedure and contends that all the provisions applicable to the suit are also applicable to interlocutory proceedings. He further contends that the provisions of Order 8 Rule 9, Civil P. C. are also attracted to interlocutory applications and that a rejoinder could, therefore, be filed with permission of the Court in interlocutory applications. But this submission of the learned counsel could not be supported by any decided authority. On the other hand the learned counsel appearing for the petitioners relies upon the decision in Ramanna v. Nagabhushanam, 1955 Andh WR 880 where it was held that :-
'Section 141, Civil Procedure Code, applies only to original proceedings in the nature of suits, such as, for example, probate and guardianship proceedings. ' It has been held both by the Judicial Committee and by the High Courts that Section 141, Civil Procedure Code, does not authorise the restoration of an execution petition dismissed for default, the remedy of the decree-holder being to file a fresh petition. Therefore, it cannot be contended that Section 141, Civil P. C. applies to all proceedings initiated in a Civil Court, irrespective of their true character. '
12. Therefore it is a clear authority in support of the submission of the learned counsel for the petitioners that the provisions of Section 141, Civil P. C. are not applicable to the present proceedings. The absence of a rejoinder in I. A. No. 204 of 1972 is not a ground for refusing to summon the respondent for cross-examination. Even otherwise the very fact that the petitioners filed an application for summoning the respondent for cross-examination implies that the petitioners are controverting the allegations made by the respondent in the counter in I. A. No. 204 of 1972. Therefore they would be entitled to ask the Court to summon the respondent for cross-examination.
13. Sri Brahmanandam, the learned counsel appearing for the respondent relies upon the decision in Bux
Singh v. Joint Director, Consolidation, : AIR1966All156 where it was observed at page 157 as follows :-
'No rejoinder affidavit has been filed by the petitioner challenging or controverting the facts mentioned therein. Under the circumstances the averments made by her in her counter affidavit must be accepted as true and correct. '
14. But these observations were made with regard to the proceeding filed by way of a writ petition under Art. 226 of the Constitution. It is an original proceeding governed by the rules made under Art. 226 of the Constitution. To such an original proceeding which is entertained by the High Court in exercise of its extraordinary original jurisdiction, the provisions of Section 141, Civil P. C. may perhaps be attracted and the Court may take into consideration the absence of a rejoinder to the counter affidavit in determining the truth or otherwise of the averments made in the affidavits filed by the parties. That case has therefore no application to the facts of the present case. Further it does not appear from the facts of that case that any request was made for cross-examination of the deponent of the counter affidavit.
15. For all the foregoing reasons the order of the lower Court is set aside. The Revision Petition is allowed and I. A. No. 276 of 1972 is allowed. Each party will bear its own costs throughout.
16. Revision allowed.