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Kanbi Mavji Khimji and anr. Vs. Kanbi Manjibhai Abjibhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Reven. Appln. No. 551 of 1967
Judge
Reported inAIR1968Guj198; (1968)0GLR907
ActsCode of Civil Procedure (CPC), 1908 - Order 19, Rules 1 and 2 - Order 39, Rule 1
AppellantKanbi Mavji Khimji and anr.
RespondentKanbi Manjibhai Abjibhai and ors.
Appellant Advocate C.T. Daru,; S.M. Shah and; N.J. Mehta, Advs.
Respondent Advocate I.M. Nanavaty,; D.D. Vyas and; B.J. Shelat, Advs.
Cases ReferredShib Sahai v. Tika.
Excerpt:
civil - cross-examination - order 19 rules 1 and 2 and order 39 rule 1 of code of civil procedure, 1908 - order refusing request of plaintiffs to order attendance of deponents who filed affidavits for cross-examination challenged - plaintiff could not insist upon compelling deponent's attendance for cross-examination - court empowered to decide such matters on affidavits - court justified in not ordering attendance of deponent for cross-examination - impugned order justified. - - order 39, rule 1 of the civil procedure code permits the court to decide such interlocutary applications, like the applications for interim injunctions, by affidavits or otherwise. ' a perusal of the wording of this rule 1 of order 39, clearly indicates that in such interlocutory applications for in term..........the provisions of order 19, rules 1 and 2 would control the provisions of order 39, rule 1 of the civil procedure code. order 39, rule 1 of the civil procedure code permits the court to decide such interlocutary applications, like the applications for interim injunctions, by affidavits or otherwise. it could only mean that the court could decide such applications on affidavits. it does not mean that the court can ignore the provisions of order 19, rules 1 and 2 of the civil procedure code. that power has to be exercised, subject to the provisions of order 19, rules 1 and 2 of the civil procedure code. ordinarily, the matter is to be decided on evidence. if one refers to the provision of sections 1 and 3 of the evidence act, it is clear that affidavit is not evidence. ordinarily, the.....
Judgment:
ORDER

(1) This is a revision petition, filed by the original plaintiffs under Section 115 of the Civil Procedure Code, against the order passed by the learned Civil Judge, Senior Division, Kutch-Bhuj, Shri R. H. Mavani, in a Civil Suit No. 104 of 1967, filed by the plaintiffs petitioners, against the opponents-defendants, refusing the request made by the petitioners to order the attendance of the original defendants Nos. 3 and 7, who had filed affidavits for cross examination.

(2) The plaintiffs-petitioners had obtained an ad interim injunction in the aforesaid suit filed by them. The opponents Nos. 3 and 7 filed affidavits in support of their say that it was not a case where interim injunction could be granted and ad interim injunction granted by the Court should be vacated. In that proceeding, the present petitioner filed Ex. 6, requesting the Court to direct the attendance of the opponents Nos. 3 and 7 who had filed affidavits for enabling the petitioners to cross examine them. By the impugned order, that request of theirs was turned down.

(3) Shri C. T. Daru, the learned Advocate, appearing on behalf of the petitioners, contended that the provisions of Order 19, Rules 1 and 2 would control the provisions of Order 39, Rule 1 of the Civil Procedure Code. Order 39, Rule 1 of the Civil Procedure Code permits the Court to decide such interlocutary applications, like the applications for interim injunctions, by affidavits or otherwise. It could only mean that the Court could decide such applications on affidavits. It does not mean that the Court can ignore the provisions of Order 19, Rules 1 and 2 of the Civil Procedure Code. That power has to be exercised, subject to the provisions of Order 19, Rules 1 and 2 of the Civil Procedure Code. Ordinarily, the matter is to be decided on evidence. If one refers to the provision of Sections 1 and 3 of the Evidence Act, it is clear that affidavit is not evidence. Ordinarily, the matter is to be decided by leading evidence, meaning thereby, that if it is oral evidence there must be viva voce examination of the person who deposes to all the relevant facts. He also invited my attention to Order 18, R. 4 of the Civil Procedure Code, which reads as under:-

'The evidence of the witness in attendance shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge'.

He also invited my attention to Section 30 of the Civil Procedure Code, the material part of which runs as under:-

'Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party . . . . . . . . . . . . .. order any fact to be proved by affidavit'.

Relying upon the provisions of this Section 30 of the Civil Procedure Code, he contended that of the Civil Procedure Code, he contended that the Court is empowered to order any fact to be proved by affidavit, but that power is circumscribed. That power is to be exercised either of its own motion or on the application of any party. But that power was subject to conditions and limitations, as may be prescribed. He contended that these limitations and conditions in relation to this topic, were prescribed by the provisions of Order 19, Rules 1 and 2 of the Civil P. C. In short his argument was that Order 39, Rules 1 of the Civil Procedure Code was controlled by the provisions of Order 19, Rules 1 and 2 of the Code. He therefore, contended that the learned Civil Judge, (S. D.), committed an error an refusing the request that the opponents Nos. 3 and 7 be directed to attend for cross-examination. His contention was that the learned Civil Judge, ((S.D.)), therefore, did not exercise the jurisdiction vested in him or acted with material irregularity in exercise of it. The impugned order should, therefore, be revised by this Court in exercise of its power under Section 115 of the Civil Procedure Code.

(4) In reply to these arguments, the learned Advocate Shri I. M. Nanavati, appearing on behalf of the opponents, contended that if the scheme of the Code is taken into account, it would be found that the Court was expressly permitted to decide interlocutory applications on affidavits. That would be found from O. 39, Rule 1, Order 38, Rule 1, Order 38, R. 5 and other provisions of the Code. He contended that this departure from an ordinary rule that a fact is to be proved by evidence, as contemplated in the Evidence Act, was made, as questions involved in such interlocutary applications were not being decided with a purpose of deciding the rights of the parties in the proceedings conclusively. They are being decided for a limited purpose, during the pendency of the suit. The rights of the parties were not being decided finally. The legislature had, therefore, expressly permitted the Court to decide such applications on affidavits. Order 18, R. 4 of the Civil Procedure Code indicated that the evidence of witnesses in attendance has to be taken orally in the open Court in the presence and under the personal direction and supervision of a Judge in a suit. Even in such substantial applications or matters, if the Court feels that particular fact or particular facts be proed by affidavits, Order 19, Rule 1 of the Civil Procedure Code, empowers the Court to exercise such powers. But that is to be exercised if the Court finds sufficient reason for the same and also that power is to be exercised, subject to such conditions as the Court thinks reasonable. In short, his contention was that under the provisions of Order 19, Rule 1, the Court has been empowered to depart from an ordinary rule that a fact is to be proved by evidence as contemplated under Sections 1 and 3 of the Evidence Act. But that power is subject to the conditions referred to therein. Proviso has been added to it to safeguard the interest of the parties to the proceedings, when such departure from an ordinary rules is to be made.

(5) Section 2 of the Civil Procedure Code relates to 'Definitions'. Sub-section (1) of it states that in this Act, unless there is anything repugnant in the subject or context,-'Code' includes rules. Sub-section (16) of it states that 'prescribed' means prescribed by rules. In sub-section (18) of it, it is stated that 'rules' means rules and forms contained in the First Schedule or made under Section 122 or Section 125. Taking into consideration these definitions, it is clear that the rules of O. 39 and O. 19, which fall in the First Schedule, would be included within the meaning of the word Code. These rules will, therefore, also form a part of the Code wherein substantive sections fall. Section 30 of the Code, which is material for our purposes, runs as under:-

'Subject to such conditions and limitation as may be prescribed, the Court may, at any time, either of it s own motion or on the application of any party, order any fact to be proved by affidavit.'

As seen earlier, 'prescribed' means prescribed by rules and the rules that find place in the First Schedule, will be the rules referred to. In my opinion, this Section 30 deals with general power given to the Court, empowering the Court, either of its own motion or on the application of any party to order any fact to be proved by affidavit. If this general power given to the Court is to be exercised by the Court by ordering any fact to be proved by affidavit, that power is subject to such conditions and limitations as may be prescribed. Those conditions and limitations have been prescribed in O. 19 of the Code, which deals with a topic 'on affidavit'. If we read this Section 30 and the relevant provisions of O. 19, Rules 1 and 2 and bear in mind the aforesaid definitions, it appears to me that only in cases where the Court exercised general power of ordering the facts to be proved by affidavit either of its own motion or on the application of any party, that power is to be exercised, subject to the conditions and limitations, imposed upon it under Order 19, Rules 1 and 2. On taking into consideration the scheme of the Act, we find several provisions in the Code, especially in the First Schedule, where the Court has been expressly permitted to decide certain matters on affidavit. One of such provisions finds place in Order 39, Rule 1. The material part of it runs as under:-

'1. Where in any suit it is provided 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 defraud his creditors, 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.'

A perusal of the wording of this Rule 1 of Order 39, clearly indicates that in such interlocutory applications for in term injunctions, the Court has been expressly permitted by the Legislature itself to decide such applications on affidavits. If the Court on affidavit finds that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or being wrongfully sold in execution of a decree, the Court is entitled to grant such ad interim injunction. Rule 4 of that order states that-

'Any order for an injunction may be discharged or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order.'

We do not find any provision in Order 39 whereby the Court is expressly permitted to decide such matters by affidavit, that those powers are to be exercised subject to the conditions and limitations prescribed. If really the Legislature intended that even though the Court was expressly permitted by the Legislature itself to decide such matters on affidavits, that power was to be exercised subject to the conditions and limitations prescribed, those wordings would have ordinarily found place in this Order 39, as it has been done in Section 30 of the Civil Procedure Code. As seen earlier rules that fall in the First Schedule, form a part of the Code. This is a special power given to the Court whereby it has been empowered to decide such interlocutory applications on affidavits. As stated earlier, S. 30 deals only with general power, given to the Court and when the Court exercises that power, that power has got to be exercised by it, subject to conditions and limitations that be prescribed and those conditions and limitations are prescribed in the O. 19, which relates to affidavits. If we now read the relevant provisions of Order 19, the same intention of the Legislature could be gathered therefrom. Order 19, Rule 1, runs as under:-

'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'.

This Rule 1 is a sort of on exception to the provisions that find place in Order 18 of the Code. Ordinarily, evidence is to be led. If it is a case of oral evidence, witnesses have to be examined to the open Court. If documentary evidence is to be led, documents have to be filed and they have to be proved Ordinarily, that is what is contemplated by reference to evidence. That also appears to be the position, if we refer to Secs. 1 and 3 of the Evidence Act. This Rule 1 of Order 19 of the Civil Procedure Code empowers the Court to depart from that ordinary rule. But when the Court exercises that power, it can do if only for sufficient reasons. Even the affidavit of any witness can be read at the time of hearing, but it is to be on conditions which the Court may impose and conditions imposed would be the conditions which the Court thinks reasonable in safeguard the interests of the parties to the proceedings. When this departure from the ordinary rule is to but made, a proviso added to it will have to be taken into account. It runs as under :-

'Provided that where it appears to the Court that either party bona fide desires the production of a witness can be produced, an and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.' By this proviso, the powers of the Court are further circumscribed. If either party bona fide describes the production of a witness for cross-examination and such witness can be produced, ordinarily, in such witness can be produced make an order of authorising the evidence of such witness to be given by affidavit. This rule will apply when the Court in exercise of its general power, directs a particular fact to be proved by affidavit. Rule 2 of the Order 19 of the Code run as under:-

(i) '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.

(ii) Such attendance shall be in Court unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.'

This rule gives a right to the parties also to apply to the Court that evidence may be given by affidavit. The Court can grant such a permission and accept the request made by either party. But that power is also circumscribed. Either party can request the Court to order the attendance for cross-examination of the deponent. That will sufficiently safeguard the interests of the other side. On a perusal of these two rules, it is quite evident that even where evidence is required to be given as contemplated under Sections 1 and 3 of the Indian Evidence Act. I.e., in case of substantial applications or suit, the Court has been empowered, If sufficient reason is shown to order that a particular fact may be proved by affidavit. But in that case, if it appears to the Court that either party bona fide desires a production of a witness for cross-examination and such witness can be produced, an order should not be made authorising the evidence of such witness to be given by affidavit. Similarly, on application of the party, evidence can be given by affidavit. But in that case also, either side can move the Court to order the attendance of such deponent for cross-examination. It is, therefore, evident that these limitations and conditions will govern the matter, if the Court exercises the power in view of these provisions of Order 19, or in view of its power under Section 30 of the Code. I am of opinion that these conditions and limitations, prescribed will be attached, only if the Court exercises this general power, vested in it. Special power is vested in the Court to decide such interlocutory applications on affidavit, and that power has been expressly given to it, these conditions and limitations will not be attached, to the exercise of that power. Either party therefore, cannot lay any claim or urge that others got a right to cross-examine such deponents. In short, the provisions of Order 39 Rule 1 or similar provisions found in several other orders, where the Court is expressly permitted to decide such interlocutory matters on affidavit, the provisions of Order 19, Rules 1 and 2, cannot be pressed into service. The learned Advocate, Mr. Daru contended that the Court derived this power to decide matters by affidavit only from Section 30 of the Civil Procedure Code. In my opinion, that power, which the Court derives, is a general power which the Court derives, is a general power and if that power is to be exercised, it is subject to the limitations and conditions prescribed. But when the Court has been given special power to decide certain interlocutory matters by affidavit, that power is unfettered. It is not subject limitations and conditions prescribed. If really the Legislature intended to place any conditions and limitations, in exercise of that special owner also, the Legislature intended to place any conditions and limitations, in exercise of that special power also, the Legislature could have used those words in that order like the Order 39, Rule 1 of the Code. The Legislature has, in my opinion, wisely not done it. The object underlying it may be that the rights of the parties in such interlocutory applications are not being decided finally, The parties are not going to suffer as only for certain limited purposes, these interlocutory applications were being decided and the rights of the parties were not being finally decided. That appears to be the reason why no such conditions and limitations have been prescribed in exercise of that special power. I am of opinion that the arguments advanced by the learned Advocate Mr. Daru are, therefore, not well found.

(6) Mr. Daru invited my attention to a case, Shamsunder Rajkumar, a firm v. Bharat Oil Mills, Nagpur, AIR 1964 Bom 38. The relevant observations made therein are us under:-

'Affidavits are not included in the definition of evidence in S. 3. Evidence Act, but on the contrary they are expressly excluded by Section 1 of that Act. That means that affidavits cannot be used as evidence under any of the provisions of the Indian Evidence Act. Affidavits can however, he used as evidence only under Order 19 of the Civil Procedure Code. Under Order 19, Rule 1, affidavit evidence cannot be entertained unless the Court passes an order, for sufficient reasons, that any particular fact or facts may be proved by affidavits. While passing an order under Order 19, Rule 1, to call for evidence on affidavits, it is necessary to consider compliance with the proviso to Rule 1, and with requirements of Rule 2, under Order 19, as the circumstances of each case may require. Where affidavits are filed in support of applications and are received by the Court, the order receiving the affidavit is tantamount to passing an order under Order 19, Rule 1 of the Civil Procedure Code and complies with the law. When an affidavit is filed, the Court official receiving it ought to see that it is properly drawn up and verified as per Order 19, Rule 3 of the Civil Procedure Code and the instructions in Chap. XXIII. Civil Manual, Vol. 1. It is not properly drawn up or verified, it ought not to be received and the parties should be required to file a proper affidavit.'

It was a case where the question of recording of evidence had come. The stage of recording of evidence had reached and to that context, these observations have been made. It was not a case where matter was expressly permitted to be decided on affidavit. That decision has, therefore, no bearing to the facts of the present case.

(7) The learned Advocate, Mr. Nanavati, appearing on behalf of the Opponents, invited my attention to a case - B. N. Munibasappa v. G. D. Swamigal, AIR 1959 Mys 139. In Para 17 of the judgment at p. 142, the following instructive observations have been made:-

'In my opinion, while it would not be correct to say that an affidavit cannot be regarded as evidence even though it is properly produced under Rule 1 or 2 of Order 19 of the Criminal Procedure Code, 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 affidavits relates to a matter like an application for an attachment or an injunction in regard to which the Code itself has made express provision.'

Ordinarily, except in such cases it is obvious that evidence has to be recorded in the manner specified in Rule 4 of Order 18 unless an order to the contrary is properly made under Rule 1 of Order 19 of the Code of Civil Procedure. As I have mentioned in order to justify must be sufficient reason. It is clear that it would be a sufficient reason to make an order of that kind in uncontested proceedings like those which were the subject-matter of the decisions in AIR 1954 AG 260, Kanhaiyalal S. Dadlani v. Meghraj Ramkaranji and in AIR 1942 Oudh 350, Shib Sahai v. Tika.

That would also be the position where the opposite party does not dispute or is not interested in disputing the facts sought to be proved by affidavit. That is the practice which is also being followed in uncontested probate proceedings and other uncontested proceedings under the Indian Succession Act. But, if a case is not a case of that kind, and the facts presented by a case, which are disputed, have to be proved, it may, perhaps, be possible in a very exceptional case, to direct a particular fact or facts in such a case to be proved by affidavit. It is true that in that case, the question that in posed before me was not directly agitated but that decision also indicates that in cases where certain specific matters are expressly permitted to be decided by affidavits, nothing more would be required. In the cases where the procedure prescribed in Order 18 of the Civil Procedure Code is to be followed, an exception may be made. That exception finds place in order 19, Rules 1 and 2 of the Civil Procedure Code and if that exception is to be made, that power is to be exercised subject to the conditions and limitations, laid therein. I am, therefore, opinion that the learned trial Judge was quite justified in holding that in a case like the present case, the plaintiff could not insist upon compelling the deponent's attendance for cross-examination. As the Court was expressly permitted to decide such matters on affidavits, the Court was justified in not ordering the attendance of opponents Nos. 3 and 7 for cross-examination. It cannot, therefore, be said that the Court. In exercise of its jurisdiction, has committed any illegality or material irregularity. The petition, therefore, fails.

The petition is dismissed with costs. Rule is discharged. Ad interim stay granted, stands vacated.

(8) Petition dismissed.


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