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Bhanwarlal Vs. Smt. Kamla Devi - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 245 of 1981
Judge
Reported in1981WLN343
AppellantBhanwarlal
RespondentSmt. Kamla Devi
DispositionPetition allowed
Excerpt:
.....order is illegal.;under order xix, rule 2 cpc, when the petitioner had moved an application for cross examination of the deponents of the affidavits, the district judge could order that the deponents of the affidavits be produced for cross-examination. he had jurisdiction to do so. this is, of course, subject to the, condition that request for cross-examination should be bonafide. the learned district judge has exercised his jurisdiction illegally or at any rate with material irregularity when he did not accord permission for cross-examination of the deponents of the affidavits which were filed on behalf of the non-petitioner in support of her application under section 24 of the act and this has materially prejudiced the petitioner and has affected the decision of the..........or at any rate a material irregularity in exercise of his jurisdiction in not permitting the cross-examination of the deponents of the affidavits which were filed in support of the application under section 24 of the act and that this has affected the decision of the application under section 24 of the act on merits. in support of his submission, he referred to rule 801 n of the rajasthan high court rules, 1952 (hereinafter referred to as 'the rules'), which reads as under:801n. mode of taking evidence.--the witnesses in all proceedings before the court, where their attendance can be had, shall be examined orally, and any party may offer himself or herself as a witness, and shall be examined, and may be cross-examined like any other witnessprovided that the parties shall be at.....
Judgment:

S.K. Mal Lodha, J.

1. This revision, under Section 115 of the Code of Civil Procedure, by the husband-petitioner Bhanwarlal is directed against the order dated May 25,1981 of the District Judge, Pali, by which, he directed the petitioner to pay Rs. 400/- per month as interim maintenance from the date of the application i.e. December 21, 1979 to the wife-non-petitioner Smt. Kamla Devi.

2. The husband-petitioner filed a petition under Section 13 of the Hindu Marriage Act (No. XXV of 1955) for short the Act' herein). During the pendency of the petition, an application under Section 24 of the Act was tiled. The application was resisted. The learned District Judge, by his order dated May 25, 1981 directed the petitioner for payment of interim maintenance as aforesaid. Hence this revision by the petitioner.

3. I have heard Mr. D.L. Mehta, learned counsel for the petitioner and Mr. S.R. Singhi learned counsel for the non-petitioner.

4. The principal contention raised by Mr., D.L. Mehta, learned counsel for the petitioner is that the husband petitioner submitted an application to the District Judge for permission to cross-examine, the deponents of the affidavits filed on behalf of the non-petitioner. The learned District Judge did not accede to the request made by the petitioner. Learned counsel submits that the learned District Judge has committed an illegality or at any rate a material irregularity in exercise of his jurisdiction in not permitting the cross-examination of the deponents of the affidavits which were filed in support of the application under Section 24 of the Act and that this has affected the decision of the application under Section 24 of the Act on merits. In support of his submission, he referred to Rule 801 N of the Rajasthan High Court Rules, 1952 (hereinafter referred to as 'the Rules'), which reads as under:

801N. Mode of taking evidence.--The witnesses in all proceedings before the Court, where their attendance can be had, shall be examined orally, and any party may offer himself or herself as a witness, and shall be examined, and may be cross-examined like any other witness

Provided that the parties shall be at liberty to verify the respective cases in whole or in part by affidavit, but so that the deponent in every such affidavit, shall on the application of the opposite party, or by direction of the Court be subject to be cross-examined, by or on behalf of the opposite party orally, and after such cross-examinatiod may be re-examined orally as aforesaid by or on behalf of the party by whom such affidavit was filed.

In view of the proviso to Rule 801 N of the Rules, the petitioner could file an application for permission to cross-examine the deponents of the affidavits, which were filed in support of the application under Section 24 of the Act. Section 21 of the Act reads as follows:

21. Application of Act V of 1908--

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

According to this section, subject to the provisions of the Act and the rules made by the High Court, all proceedings under the Act are to be regulated as far as may be by the Code of Civil Procedure, 1908.

Order XIX, Rule 2 CPC reads as under:

2. Power to order attendance of deponents for cross-examination:- (1) Upon any application evidence maybe 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.

Order XIX, Rule 2 CPC is confined to applications. The fact or facts contained in the application can be proved by affidavits. It is discretionary to order for attendance for cross-examination of the deponents. The non-petitioner submitted an application under Section 24 of the Act for grant of interim maintenance and expenses of revision petition. In support of that, she filed affidavits. The petitioner submitted an application for cross-examination of the deponents of the affidavits. Under Order XIX, Rule 2 CPC, when the petitioner had moved an application for cross-examination of the deponents of the affidavits, the District Judge could order that the deponents of the affidavits be produced for cross-examination. He had jurisdiction to do so. This is, of course, subject to the condition that request for cross-examination should be bonafide. It has not been shown that this request which was made for cross-examination of the deponents of the affidavits was not bonafide. The learned District Judge dismissed the application of the petitioner. He referred Rule 801P of the Rules, which provides for the particulars to be stated in the application for alimony and maintenance and that such application is to be supported by an affidavit of the applicant. There is nothing in this rule to show that cross-examination of the deponents of the affidavits cannot be ordered. Having regard to the provisions of Order XIX, Rule 2 CPC and Rule 801N of the Rules, I am of opinion that the learned District Judge has exercised his jurisdiction illegally or at any rate with material irregularity when, he did not record permission for cross-examination of the deponents of the affidavits which were filed on behalf of the non-petitioner in support of her application under Section 24 of the Act and this has materially prejudiced the petitioner and has affected the decision of the application. The order under revision, if allowed to stand would occasion a failure of justice.

5. In view of the conclusion to which I have arrived at, I do not propose to consider the other contention raised by the learned counsel for the petitioner that the order under revision has been passed in utter disregard of the material which is on record.

6. For the reasons aforesaid, I am constrained to allow this revision and set aside the order dated May 25, 1981 of the learned District Judge, Pali. The learned District Judge will permit the cross-examination of the deponents of the affidavits, which were filed on behalf of the non-petitioner in support of the application under Section 24 of the Act. He will also afford on opportunity to the non-petitioner, if an application is moved on her behalf for permission to cross-examine the deponents of the affidavits which were filed in rebuttal of the affidavits filed on her behalf. The learned District Judge shall dispose of the application under Section 24 of the Act after considering the entire relevant material on record. He will afford an opportunity of being heard to the parties concerned. The parties are directed to appear before the learned District Judge Pali on August 10, 1981. It is hoped that the learned District Judge will make endeavour to dispose of the application under Section 24 of the Act within a period of two months. In the circumstances of the case, there will be no order as to costs of this revision petition.

7. Before parting with the case, it maybe stated that Dr. D.L. Mehta, learned counsel for the petitioner has paid Rs. 1,000/- to Mr. S.R. Singhi, learned counsel for the non-petitioner today and the receipt evidencing the payment has been given to Mr. D.L. Mehta, learned counsel for the petitioner. Mr. S.R. Singhi, learned counsel for the non-petitioner has stated in the receipt that the amount of Rs. 1,000/- which has been paid today shall be adjusted towards the interim maintenance, which may be determined by the learned District Judge, while disposing of the application under Section 24 of the Act.


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