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Pijush Kanti Guha Vs. Smt. Kinnori Mullick - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Judge
Reported inAIR1984Cal184,88CWN615
ActsCode of Civil Procedure (CPC) , 1908 - Order 17, Rule 1 - Order 19, Rules 1 and 2 - Order 39, Rule 1
AppellantPijush Kanti Guha
RespondentSmt. Kinnori Mullick
Appellant AdvocateS.K. Biswas, ;R.P. Banerjee and ;Syed Monbhor Ali, Advs.
Respondent AdvocateBidyut Kumar Banerjee, Adv.
DispositionPetition dismissed
Cases ReferredFedl. I. Ass.Co. v. Anandrao
Excerpt:
- orderm.n. roy, j.1. by this application for a rule under section 115 of the civil p. c, the petitioner, who is the plaintiff in title suit no. 455 of 1982, pending before the learned second bench, city civil court at calcutta, has sought to impeach order no. 77, dated 17th feb., 1984, whereby his application under order 19, rule 1 of the civil p. c. has been dismissed on contest with costs.2. the petitioner is stated to be carrying on wholesale business in medicines and other pharmaceutical products under the name and style 'padcom'. he is also stated to be the sole proprietor of the said business, which is being carried on in a room on the first floor of the premises no. 4, wood street, calcutta-16 (hereinafter referred to as the said premises). it was his case, that sometime in the.....
Judgment:
ORDER

M.N. Roy, J.

1. By this application for a Rule under Section 115 of the Civil P. C, the petitioner, who is the plaintiff in Title Suit No. 455 of 1982, pending before the learned Second Bench, City Civil Court at Calcutta, has sought to impeach Order No. 77, dated 17th Feb., 1984, whereby his application under Order 19, Rule 1 of the Civil P. C. has been dismissed on contest with costs.

2. The petitioner is stated to be carrying on wholesale business in medicines and other pharmaceutical products under the name and style 'PADCOM'. He is also stated to be the sole proprietor of the said business, which is being carried on in a room on the first floor of the premises No. 4, Wood Street, Calcutta-16 (hereinafter referred to as the said premises). It was his case, that sometime in the month of June 1972, Shri Haripada Mullick, opposite party No. 2, describing himself as the agent of Smt. Kinnori Mullick, opposite party No. 1, inducted him as a tenant in respect of the said premises on rental of Rs. 350/- per month and such rent is payable according to English calendar month. It has also been slated by the petitioner that at the time of his induction as tenant, he paid Rs. 700/- out of which Rs. 350/-was on account of rent for the month of June 1972 and the balance Rs. 350/- was kept as security deposit with the opposite party as mentioned above and he, to whom such payment was made, did not grant any receipt on the plea of pendency of a probate matter and so also the pendency of other matters like estate duty, income-tax and Corporation tax of the opposite party No. 1. The petitioner has further stated that the opposite party No. 2, assured him that there would be no difficulty so far he is concerned in the matter of peaceful and exclusive enjoyment of the said premises. the measurement whereof would be about 400 square ft. The petitioner has of course alleged that his possession and enjoyment of the said premises, was initially peaceful and without any trouble and he, in fact, got the said premises thoroughly renovated, apart from having various other costly fixtures and fittings, fitted at his cost.

3. It has now been stated that in the month of June 1981, the opposite party No. 2, as mentioned above, refused to accept the monthly rent and asked the petitioner to vacate the said premises as the opposite parties Nos. 1 and 2 were negotiating to sell the entice premises to J. D. Damani, opposite party No. 3, for the purpose of constructing a multi-storied building. On such, the petitioner has stated to have remitted rent to the opposite party No. 1, firstly by money order and thereafter, on refusal to accept the same by the opposite party No. 1, he has deposited such rent with the Rent Controller, Calcutta and thereafter, be is regularly depositing the monthly rent with the said Controller.

4. It has also been alleged that on or about June 1981, the opposite party along with other persons whom the petitioner does not know, had entered into a criminal conspiracy for illegally ousting the petitioner from the said premises and thus they had created various obstacles to the petitioner's carrying on the business peacefully. The petitioner, being apprehensive of further mischief, filed the concerned suit being Title Suit No. 455 of 1982 on 12th March, 1982, in the City Civil Court at Calcutta, praying inter alia for a declaration that he was and is a tenant under the said Smt. Kinnori Mullick in respect of the said premises and also for appropriate permanent injunction. In that proceeding the petitioner also filed an application under Order 39, Rules 1 and 2 read with Section 151 of the Civil P. C., praying for an ad interim order of injunction restraining the opposite parties from in any way interfering with or obstructing or disturbing the petitioner's possession as tenant in respect of the. said premises and the learned Judge, City Civil Court at Calcutta was pleased to grant an ad interim temporary injunction on 17th March, 1982. in terms of those prayers apart from giving necessary directions for effecting service of notices on the opposite parties herein. It has been stated that opposite party No. 3, the said Shri Damani, entered appearance in the proceeding on 17th April, 1982 and the other opposite parties entered appearance on 2nd June, 1982 and thereafter, they have obtained scries of adjournments, the particulars whereof have been mentioned in para 16 and those particulars were sought to be supplemented and supported by Mr. Biswas, on a reference to the certified copy of the order sheets. It has. been stated that thereafter, on 19th Jan., 1984, the petitioner had filed a petition for adjournments, as the the learned Senior Counsel for the opposite parties, Shri P, Sinba. was absent when the matter was taken up for. hearing and the learned Judge was not willing to hear the matter in his absence, although the senior counsel of the petitioner was present in Court. In fact; it has been stated that thelearned Judge was pleased to adjourn the matter, with a direction to the petitioner's Advocate to file a petition for, adjournment. It has also been stated that accordingly the petition for adjournment as in Annex.-B was filed. Such statements as mentioned above, have been made in para 17 of the petition in this Court but unfortunately, the verification of that paragraph which has been claimed by the deponent, who is the petitioner himself, appeared to me to be not satisfactory. The said paragraph has been affirmed as true to the information of the deponent based on the records. I fail to understand, if the learned Judge has made such statements as recorded hereinbefore or as have been mentioned in paragraph 17 of the present petition how they could be matters of records. Such being the position, I requested Mr. Biswas to satisfy me about the validity of the statements as indicated hereinbefore and how the deponent of the present petition has affirmed those statements in the manner as indicated hereinbefore. Mr. Biswas in his usual fairness stated that excepting the application in Annexure-B of the present petition nothing would appear from the records, in support of the statements as made in para 17. If the learned Judge had made such a statement in Court while the proceeding was on, then certainly he had not acted duly. But, Mr. Bidyut Kumar Banerjee, appearing for the opposite parties, on instructions stated, that no such statement was made by the learned Judge in Court. Such being the position, it becomes very difficult for me to accept the statements as made in para 17 and I also feel that since the learned Judges are not required to file affidavits or are not required to be heard on affidavits, so also, it will be very difficult and embarassing for This Court to rely on the statement as made in para 17. In the said application in Annexure-B there is no doubt a statement in para 2 which suggests that the learned Judge was not willing to take up the matter as the said senior learned Advocate for the defendants was not present, even though the senior Advocate of the petitioner, who was present in Court, was ready to proceed with the hearing. If such statements are correct, then also, I have no other alternative in holding or any hesitation in saying that the learned Judge had acted irregularly, as the was acting contrary to the provisions of the provisos to Order 17, Rule 1 of the Civil P. C. and more particularly when the absence of a senior, lawyer or his engagement elsewhere would be no ground for adjourning a proceeding.

5. Admittedly, the injunction matter was heard in part on 14th Sept., 1983 and according to the petitioner, in the course of such hearing, it transpired that certain facts relating to the injunction matters which were on the record, could not be proved except by adducing evidence both oral and documentary and that too for the purpose of establishing the petitioner's continued possession of the said premises as a tenant and accordingly in terms of the advice as received, the petitioner, on 19th Sept., 1983, filed an application under Order 39, of the Civil P. C. This application under Order 39 for adducing oral evidence was rejected by the learned Court below on 14th Dec., 1983 and from such order, this Court was moved in revision, which application again, was rejected.

6. Thereafter, on further advice, another application under Order 19, Rules 1 and 2 of the Civil P. C., for allowing the petitioner to cross-examine the defendants on their affidavits, was filed with a further prayer for adducing oral evidence. Such prayer was made as it was alleged that the defendants were required to be cross-examined on their affidavits, as certain facts were required to be elucidated. Such being the position, on or about 23rd Dec., 1983, the necessary application was filed, the copy whereof has been annexed as Annexure-C to the present petition. In fact, by such petition, direction has been asked on the defendants to submit (to) the cross-examination in open Court, as per provisions of Rules 1 and 2 of Order 19 of the Civil P. C. The basis of such application was that there were conflicting assertions and averments in the affidavits of both sides, which could only be resolved by cross-examination of the defendants and not on the basis of affidavit evidence only. The said application was heard on diverse dates by the learned Judge and ultimately, by the impugned Order No. 77 as indicated above, the application was dismissed.

7. It has also been stated in the present petition that the said application under Order 19, Rules 1 and 2 of the Civil P. C. was finally heard and concluded on 16th Feb., 1984, but the judgment was not delivered in open Court on that date and the petitioner was given to understand by bis lawyer that the judgment would be delivered on a future date and the date when announced would be communicated to him.The petitioner has now alleged that it appears now that the judgment was signed by the learned Judge on 16th Feb., 1984 but it would also appear from the certified copy of the order sheet, that the order was made on 17th Feb., 1984 and such anomaly is regrettable and is also in clear violation of the mandatory provisions of Order 20, Rule 1 of the Civil P. C. On such alleged happenings, it has been suggested that the learned Judge must have acted more mechanically rather than on application of his judicial mind, in considering the provisions of Order 20, Rule 1 as mentioned above, which amounts to juris-dictional error on the face of the records. Above is certainly a serious allegation, if correct. Mr. Banerjce on instructions also stated that the statements as indicated hereinbefore, are not virtually correct, as the judgment was delivered on the date of hearing. Such being the position I further agree with his submission that perhaps the mentioning of the date 17th Feb., 1984 at the top of the certified copy and against Order No. 77 has crept in by some accidental error or mistake.

8. It was claimed by Mr. Biswas that in the facts and circumstances of the case the learned Judge should have allowed the petitioner, the opportunity to 'cross-examine the defendants on the basis of their affidavits or to have elucidation of the apparent constructions (contradictions ?) and the learned Judge acted illegally and with material irregularity, in the exercise of his jurisdiction in treating the counter-affidavits of the opposite parties herein, as evidence though several averments in them, were impeached by the petitioner in his application under Order 19, Rule 2 of Civil P. C. Such rejection of the concerned application has further been claimed by Mr. Biswas to be a case of jurisdictional error, committed by the learned Judge and it was also claimed that even though there was some discretions left with the learned Judge, he failed to appreciate the well established limits within which such discretions could be exercised. It was also claimed that the concerned application was rejected mechanically and without application of mind. Mr. Biswas further contended that the learned Judge should have given liberty to the petitioner to cross-examine the defendants on the affidavits and in refusing such liberty, he has acted not only on wrong premises, but has also acted on erroneous interpretation of the provisions of Order 19, Rules 1 and 2 of the Civil P. C. It was also claimed by Mr.Biswas further that the concerned order was made by the learned Judge without taking into consideration even the provisions of Order 18, Rule 4 of the Civil P. C. and so also the definition of 'evidence' as in the Evidence Act. To establish that the determination in the instant case was made more on mechnical application of mind than on real application of the same, reference was made to the provisions' of Order 20, Rule 1 of the Civil P. C., which according to Mr. Biswas were violated in the instant case. It has been observed in the case of Abdul Hamid Khan v. Muzeed-ul-Hasaan : AIR1975All398 , that in an application under Order 19, Rules 1 and 2 and Order 39, Rule 1, for interim injunction when affidavits file, are conflicting, the Court can summon the applicant for cross-examination. Mr. Biswas relied on the aforesaid decision and claimed that when cross-examinatjon of the defendants of the concerned affidavits were necessary or were felt, considering the conflicting claims and which really was the contention of the petitioner in this case, so the learned Court below should have allowed the opportunity of cross-examination. Then, reference was made by Mr. Biswas to the determinations in the case of In re : Ali Bin Aifan, AIR 1983 Andh Pra 114, where dealing with the provisions of Order 19, Rules 1 and 2 and Order 39, Rule 1 of the Civil P. C. it has been observed that an application for temporary injunction under those provisions can be disposed of by the Court on affidavits and at the same time the Court can also summon deponents for cross-examination. In that case it has been specifically observed that the provisions of Order 19, Civil P. C. are attracted on an application filed for a temporary injunction under Order 39, Civil P. C. and the Court has ample power to dispose of tlhe matters on affidavits and the Court has also ample jurisdiction to summon the deponents of the affidavits for cross-examination either suo motu where the Court desires that they should be cross-examined or at the instance of a party if the Court comes to conclusion that the circumstances warrant the summoning of the deponents for cross-examination and on the basis of such observations it was claimed by Mr. Biswas that the learned Courts below should have summoned the deponents of the concerned affidavits for cross-examination. Then, reference was made by Mr. Biswas to the case of C. Srinivasa Rao v. K. Manohar Rao : AIR1981AP406 which lays down that Order 39, Rule 1, Civil P. C. permits proofof the required circumstances for the grant of a temporary injunction by affidavits. The proof is not confined to affidavits only. The mere fact that affidavits can be filed in a temporary injunction proceeding under Order 39, Rule 4, Civil P. C. does not require the Court to decide the controverted questions in that proceeding only by reference to affidavits. Order 39, Rule 1, Civil P. C. merely enables the Court to decide the disputed questions in that proceeding on the basis of affidavits and the language of the provision does not incorporate any prohibitions against the Court to summon the deponents for examination or cross-examination. No doubt Order 19, Rule 2, Civil P. C., is applicable only in the case of affidavits filed by an order of the Court passed under Order 19, Rule 1 and that rule may not have any application to the affidavits filed under the statutory permission, provided under Order 39, Rule 1, Civil P. C, but it should be remembered that the extraordinary method of proof or disproof of facts in a judicial proceeding by affidavit evidence is permit-led in an interlocutory matter only to save time in the disposal of the proceeding in which the Court does not decide the rights of the parties finally. It cannot however be construed that the statutory provision under Order 39, Rule 1, Civil P. C. is intended to dispense with the very object for which a Court is constituted. The Court has always its inherent power to pass such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. Further in view of Rules 33 and 46 of Civil Rules of Practice and Circular Orders the Court is empowered to call any witness in Court for cross-examination. Therefore dismissal of an application of one of the parties to summon the deponents of affidavit filed by opponent by the Court on the ground that it has no jurisdiction to summon them would be erroneous and would amount to failure to exercise jurisdiction vested in it and the order of dismissal would be liable to be set aside. Then a reference was made to the case of B. N. Munibasappa v. Gurusiddaraja Desikendra Swamigal, AIR 1959 Mys 139, by Mr. Biswas, where it has been observed that the provisions of Order 19, Rule 2 applies to such substantive application also apart from holding that the Court cannot under. Rule 2 of Order 19, direct the parties to give evidence upon an application only by affidavit The language of Rule 2 when contracted with that of Rule 1, makes it clear that unlike Rule 2, Rule 1 is an enabling provisionentitling the parties to give evidence by affidavit upon any application and does not confer power on the Court to compel the parties to do so. Further, the provision for cross-examination contained in that Rule 1, demonstrates the futility of applying that rule to cases in which the parties do not consent that affidavits and affidavits alone should be treated as evidence or in which the statements made in the affidavits produced by one party are controverted by those produced by the other and Rule 1 of Order 19. Civil P. C. also is not a provision under which the Court may direct that a party may prove the whole of his case by the production of affidavits. What it provides is that a particular fact or facts may be proved by affidavit provided there were sufficient reasons for doing so, apart from holding that an order made under Rule 1 of Order 19 is permissible only in exceptional circumstances. It would really be improper for a Court to make an order under that Rule, displacing for no special reason, the ordinary mode of proof enjoined by Rule 4 of Order 18 of the Civil P. C. It is quite undesirable and contrary to law and established practice that in proceedings arising under the Mysore House Rent and Accommodation Control Act, the parties should be compelled to produce affidavits in proof of their cases without their being permitted to examine the witnesses in the ordinary way. Such an order is a clear misuse of the provisions of Order 19, and is therefore liable to be set aside. Lastly, Mr. Biswas thereafter referred to the determinations of the Supreme Court in the case of Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holding Ltd. : [1981]3SCR698 . He made specific reference to paragraphs 61 and 63 of the judgment.

9. Mr. Banerjee contended that under the Code, Courts are invested with General and Special Powers and the powers under Order 19 would come within the category of Special powers, where powers are not used or exercised indiscriminately but they are used sparingly. He claimed that the power, to order discovery and like will be governed by Section 30 of the Code and the exercise of power under Order 19 as aforesaid, would come under Clause (c) of Section 30 i.e. 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. Such being the position, Mr. Banerjee claimed and contended that in a proceeding under Order 19, thediscretion is left with the Court and applicants have no absolute right to claim examination of the deponent of the concerned affidavit. It was his submission that it was the Court and Court alone, which would be left to decide, if in the facts of a given case, evidence of the deponent to an affidavit, should or should not be taken. But, Mr. Banerjee submitted that the position would not be the same for proceedings under Orders 38 and 39 of the Code.

10. In the case of B. N. Munibasappa v. Gurusiddaraja Desikendra Swamigal (AIR 1959 Mys 139) (supra), on the concerned application, notices were ordered to the landlord. After the landlord was notified about the application, he filed his statement of objections, in which he repudiated the truth of the allegations made by the tenant and the case was posted on 23-11-1956, for evidence to 2-2-1957. On 2-2-1957, the case was again adjourned to 16-3-1957. On 16-3-1957, the learned Munsif made an order directing the parties to produce evidence by affidavits, the meaning of which, as was understood by the learned Judge, was that the parties have to prove their allegations by the production of affidavits. The landlord and the tenant, in addition to their own affidavits, produced two other affidavits each. The affidavits produced on the one side contradicted the allegations contained in the affidavits produced by the other side. The learned Munsiff, who preferred to accept the affidavits produced by the landlord and those of the other two deponents who had sworn two affidavits in support of the landlord's story, dismissed the application made by the tenant. It is that order against which the revision petition was presented. In that cn.se, two contentions were raised The first contention was that the learned Munsiff had no power to direct the parties to prove their cases by the production of affidavits. The second contention is that even if a case could have been disposed of on the affidavits produced by the parties, this was a case in which the learned Munsiff had acted with material irregularity in depending upon the affidavits produced by the landlord and in discarding those produced by the tenant. It has been observed that the first contention raises the question of the competence of the learned Munsiff to direct the parties to prove their allegations in this case by the production of affidavits. It waa seen from the proceedings in the case that the learned Munsiff, when making an order on 16-3-1957, which reads 'Evidence by affidavits by 29-6-1957' did not give theprovision of law under which he made that order nor the reason why he gave tbaf direction. Mr. Chandriah, the learned Advocate for the landlord admitted that that order was not made as a result of any agreement between the tenant and the landlord. It has also been observed that Rule 4 of Order 18 of the Civil P. C. provides that the evidence of witnesses, in attendance, shall be taken orally in open Court in the presence and under the personal direction and superintendence of the Judge. In this case, it was not disputed that the parties intended to produce evidence in support of their respective cases and indeed, the proceedings dated 23-11-1956 and 2-2-1957, made it clear that it is so and that being the position, the procedure which normally should have been adopted by the learned Munsif for recording that evidence was that provided by Rule 4 of the Order 18 of the Civil P. C. But, Section 30 of the Civil P. C, enables a Court subject to such conditions and limitations as may be prescribed, either on its own motion or on the application of any party, to ordei a fact to be proved by affidavit. Those conditions and limitations referred to in Section 30 are those prescribed by Order 19 of the Civil P. C. Rule 1 of Order 19 provides that :

'Any Court may at any time for sufficient reasons order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witnesses may be read at the hearing on such conditions as the Court thinks reasonable.'

Provided that where it appears to theCourt that either parry bona fide desires theproduction of a witness for cross-examination, and that such witness can be producedan order shall not be made authorising theevidence of such witness to be given byaffidavits.'

Rule 2 of that order reads :

'(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance ior 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.'

Rule 3 of that Order specifies the matters to which affidavits shall be confined. The learned Advocate for the landlord in that case urged that the order of the learned Munsiff made on 16-3-1957, must be regarded as one made either under Rule 1 or Rule 2of Order 19 of the Civil P. C. Mr. Chandriah also contended that by reason of the fact that the tenant himself produced two affidavits in compliance with that order, a presumption has to be raised that the tenant consented to the direction given by the learned Munsiff. According to Mr. Chandriah such consent will amount to an agreement between the parties that their case should be allowed to be proved by affidavits and it has been observed that it is now well settled that in the absence of any agreement between the parties and in the absence of an order made by a Court under Rule 1 of Order 19 of the Civil P. C., and except in cases in which an order is made for examination by interrogatories or before a Commissioner the witnesses at the trial should be examined viva voce and in open Court, Warner v. Mosses, (1880) 16 Ch D 100. The principle laid down in that decision is exactly what emerges from the provisions of Section 30 Rule 4 of Order 18 and Rules 1, 2 and 3 of Order 19 of the Civil P. C. That, is also the effect of the provisions of Section 1 of the Evidence Act according to which that Act does not apply to affidavits presented to any Court or Officer. That that is the position is also clear from Section 3 of the Evidence Act which defines evidence as meaning :

'(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.' It has thus been held in that case that it is therefore clear that an order under Rule 1 of Order 19 of the Civil P. C. is permissible only in exceptional circumstances. It would really be improper for a Court to make an order under that Rule, displacing for no special reason, the ordinary mode of proof enjoined by Rule 4 of Order 18 of the Civil P. C. It is quite undesirable and contrary to law and established practice that, in applications like the one out of which this revision petition arises and in applications like those under Rules 9 and 13 of Order 9, or Rules 58, 90 and 100 of Order 21 of the Civil P. C., or in proceedings arising, as in this case, under the Mysore House Rent and Accommodation Control Act, the parties should be compelled to produce affidavits in proof of their cases without they being permitted to examine the witnesses in the ordinary way and that being so, it seems that the order made in this case directing the parties to produce affidavits in support of their cases was a clear misuse of the provisions of Order 19 of the Civil P. C. The order underrevision which is the outcome of a patently illegal procedure adopted by the learned Munsiff was therefore liable to be set aside.

11. Thereafter, reference was made by Mr. Banerjee to the case of Kanbi Mavji Khimji v. Kanbi Manjibhai Abjibhai : AIR1968Guj198 , where it has been indicated; that where the Court is expressly permitted to decide interlocutory matters on affidavit, the provisions of Order 19, Rules 1 and 2 cannot be pressed into service. The conditions and limitations prescribed in Order 19, Rules 1 and 2 will be attached only if the Court exercises the general power vested in it and a perusal of the wordings of Rule 1 of Order 39, clearly indicates that is interlocutory applications for interim injunctions, the Court has been expressly permitted by the legislature itself to decide such application 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 parly to the suit, or being wrongfully sold in execution of a decree, the Court is entitled to grant such ad interim injunction. Either party, therefore, cannot lay any claim or urge that it has got a right to cross-examine the deponent. Mr. Banerjee also contended that since this Court in C. O. 3684 of 1983 had not made any interference, against the earlier application filed against the determination of the application under Order 39 and had dismissed such application, the effect of such order or determination will have to be considered. In fact, Mr. Banerjee submitted further What the determinations in the above-mentioned Gujarat case, would appropriately apply in the facts of this case.

12. In the case of Sakalahhaktula Vykunta Rao v. Made Appalaswamy : AIR1978AP103 , to which reference was made by Mr. Banerjee, it has been observed that Order 39, Rule 1, provides expressly that the Court is permitted to dispose, of the interlocutory application by 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 dispened 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 Order 39, Rule 1, the question of summoning the deponent for the purpose of cross-examination at the instance of a party under Order 19, Rules 1 and 2 does not arise atall. The power given to the Court under Order 39, Rule 1 to decide the matters by affidavits is unfettered and is not subjected to the provisions of Order 19, Rules 1 and 2 and has thus laid the power of the Court in urgent matters, to decide the case on affidavits and by such enquiry, the rights of the parties are not decided finally. Mr. Banerjee also contended that on the basis of such law, laying down the powers of the Court the question of summoning a deponent for the purpose of cross-examination at the instance of a party under Order 19, Rules 1 and 2 of the Code, does not arise at all.

13. Then, reference was made by Mr Banerjee to the determinations in the case of Ranjit Ghosh v. Hindusthan Steel Ltd. : AIR1971Cal100 In that case, it has been observed that if a decision is based on information or materials behind the back of the party affected or no opportunity to him to rebut that information, the procedure so adopted would be opposed to principles of natural justice. In that case, on interpretation of Order 19, Rule 1 of the Civil P. C., it has been observed that any Court may at any time lor 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 the Court thinks reasonable. A reference in this context may also be made to Order 39, Rule 1 of the Civil P. C., dealing with cases in which temporary injunction may be granted, and providing as follows : 'Where in any suit it is proved by affidavit or otherwise the Court may by order grant a temporary injunction ... ... ...' It is therefore abundantlyclear that in suits for temporary injunction and in interlocutory matter relating thereto affidavit forms the sheet-anchor and the facts in connection therewith are proved by affidavits. In this context the use of the supplementary affidavit-in-opposition affirmed an the 17th March, 1969 assumed importance and the learned Judge having relied on the materials disclosed therein, the order ultimately passed by him has been unwarranted and untenable. In the well-known case of Taylor v. Taylor, reported in (1875) 1 Ch D 426 Jessel, M. Rule observed at p. 431 that 'when a statutory power is conferred for the first time upon a Court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted......'The said principles were approved of and applied by their Lordships of the Judicial Committee in the case of Nazir Ahmed v. King Emperor reported in (1936) 63 Ind App372. Lord Roche delivering the judgment of the Judicial Committee observed at pp. 381 and 382 that 'The rule which applies is a different and not less well-recognized rule viz. that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.' In a later decision the Supreme Court again reiterated the said principles when in the case of State of U. P. v. Singhara Singh, reported in : [1964]4SCR485 , A. K. Sarkar. J., (as his Lordship then was) delivering the judgment of the Court observed at page 362 that 'the rule adopted in Taylor v. Taylor, (1875) 1 Ch D 426 is well-recognized and is founded on sound principles. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provisions might as well not have been enacted.' I respectfully agree with the observations referred to above and I hold that the order passed by the Court below, rejecting the applications for temporary injunction by the plaintiff, is dehors the procedure established by law. The case therefore should be remanded to the Court below ex debito justitiae for a proper determination in accordance with law, or a consideration of all of the materials on record. Mr. Banerjee also referred to the case of State of U. P. v. Singhara Singh. : [1964]4SCR485 , which case was also cited and discussed in the case of Ranjit Ghosh v. Hindusthan Steel Ltd. (supra).

14. In the case of Needle Industries (India) Ltd. v. Needle Industries Newey (India) Holdings Ltd. : [1981]3SCR698 (supra), and more particularly in such portions as have been marked by the petitioner it has been observed that under Order, XIX, Rule 2 of the Code, it is open to a party to request the Court that the deponent of an affidavit should be asked to submit to cross-examination. No such request was made in the trial Court for the cross-examination of Devagnanam who amongst all those who filed their affidavits, was the only person having personal knowledge of everything that happened at every stage. Why he did or did not do certain things and what was his attitude of mind on crucial issues ought to have been elicited in cross-examination. It is not permissible to rely argumentativelyon inferences said to arise from statements made in the correspondence, unless such inferences arise irresistibly from admitted or virtually admitted facts. The verification clause of Mackrael's affidavit shows that he had no personal knowledge on most of the material points. Raeburn who according to Mackrael, was the Chief negotiator on behalf of the Holding Company in the Birmingham meeting did not file any affidavit at all. Whitehouse, the Secretary of the Holding Company and N. T. Sanders who was the sole representative of the Holding Company on NIIL's Board of Directors did file affidavits but they are restricted to the question of the late receipt of the letter of offer of shares and the notice for the Board meeting of May 2, 1977. Their affidavits being studiously silent on all other important points and the affidavit filed on behalf of the Holding Company being utterly inadequate to support the charge of mala fides or abuse of the Directors' fiduciary powers, it was absolutely essential for the Holding Company to adduce oral evidence in support of its case or at least to ask that Devagnanam should submit himself for cross-examination. This according to Shri Nariman, is a fundamental infirmity from which the case of the Holding Company suffers and, therefore, this Court ought not to record a finding of mala fides or of abuse of powers, especially when such findings are likely to involve grave consequences, moral and material to Devagnanam and jeopardise the very functioning of NIIL itself and it is generally unsatisfactory to record a finding involving grave consequences to a person on the basis of affidavits and documents without asking that person to submit to cross-examination It is true that men may lie but documents will not and often, documents speak louder than words. But a total reliance on the written word, when, probity and fairness of conduct are in issue, involves that risk that the person accused of wrongful conduct is denied an opportunity to controvert the inferences said to arise from the documents. But then Shri Nariman's objection seems to us a belated attempt to avoid an inquiry into the conduct and motives of Devagnanam. The Company petition was argued both in the trial Court and in the Appellate Court on the basis of affidavits filed by the petitioner, the correspondence and the documents. The learned Appellate Judges of the High Court have observed in their judgment that it was admitted, that before the learned trial Judge, both sides had agreed to proceed with the matter on the basis ofaffidavits and correspondence only and neither party asked for a trial in the sense of examination of witnesses. In these circumstances, the High Court was right in holding that, having taken up the particular attitude, it was not open to Devagnanam and his group to contend that the allegation of mala fides could not be examined, on the basis of affidavit and the correspondence only. There, is ample material on the record of this case in the form of affidavits, correspondence and other documents, on the basis of which proper and necessary inferences can safely and legitimately be drawn. On a reference to the background of the initiation of the case and the manner and the circumstances in which the determination was made. Mr. Banerjee claimed such determination to be inapplicable in this case.

15. In terms of Order 19 of the Civil P C. ordinarily the Court is empowered to have a fact proved by affidavit, but such power under Rule 1 should be used (sic) proceedings. The provisions of Rule 1 are not subject to the proviso. If there are sufficient and appropriate reasons, the Court may direct proof of some fact or facts by affidavits, but certainly not the case in its entirety. As indicated earlier, such order under Rule 1 would be possible in some permissible circumstances and more particularly such permissible circumstances would mean exceptional or extraordinary circumstances. Evidence through affidavit would not be permitted without an order of the Court and the same would be allowed when the parties to the proceedings agree to such filing of affidavit evidence. Rule 2 of Order 19 was initialty held to be applicable to interlocutory proceeding and not to application of a substantive nature.As observed in the case of Fedl. I. Ass.Co. v. Anandrao, ILR (1944) Nag 436 : (AIR 1944 Nag 161), substantive applications would be those which initiate proceedings and interlocutory applications are incidental to such proceedings and made while they are pending. But later, it has been observed by the Bench decisions of Nagpur and Mysore High Courts that Order 19, Rule 2 has application to both the substantive and interlocutory orders. The language of Rules 1 and 2 make it clear that unlike Rule 2, Rule 1 is an enabling provision authorising the parties to give evidence by affidavit upon any application, and does not empower the Court to compel the parties to do so. The language of Rule 2, which uses the word 'May' makes it clear that in affidavits on interlocutory application there is a discretion to direct or order cross-examination and ordinarily, same is not allowed, as the delay involved in most cases would defeat the object of the application. It should be remembered that here in this case it has been observed that effect of such cross-examination as asked for would mean delaying tine hearing and disposal of the lis and as such the bona fides of such prayer has been doubted by the learned Court below. I have also my doubts about the bona fide of the concerned application and I further feel that since the petitioner has already received aa ad interim order of injunction, he is interested in delaying the hearing of the suit. In fact the learned Court below has also hinted to that effect considering the conduct of the petitioner and the attending circumstances.

16. The case of Needle Industries (India) Ltd. : [1981]3SCR698 (supra) is certainly distinguishable and not applicable in the facts of this case. From the determinations as cited at the Bar. it should be held that in a proceeding under Order 19, there is discretion left with the Court and no applicant would have the absolute right to claim examination of a deponent on his affidavit as filed. It was only the Court concerned, who could decide, if in the facts of a given case, evidence of the deponent of an affidavit should be taken or not The provisions of Order 19, Rules 1 and 2 , cannot be resorted to when and where the Court is expressly permitted to decide interlocutory matters on affidavit, either party to such a proceeding would not have any absolute right to cross-examine the concerned deponent. This case, as submitted by Mr. Banerjee is really governed by the determinations of the Gujarat High Court in the case of Kanbi Mavji Khimiji : AIR1968Guj198 (supra). Proceeding under Order 19. Rules 1 and 2 can of course be resorted to by agreement amongst the parties or their consent.

17. The above being the position and my findings, this application should fail I order accordingly. The application is thus rejected without issuing a Rule. There will be no order as to costs.

18. Prayer for leave to appeal to the Supreme Court is refused.


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