Saturday, 8 October 2016

Whether court should issue summon compelling presence of deponent for cross examination whose affidavit is filed during proceeding for interim injunction?

 It is also clear from the provisions of Order 19, Rule 2, C.P.C. that the court may order the attendance of the deponent for the cross-examination. Order 19 of the Code of Civil Procedure contains no provision empowering the court to issue process to enforce the attendance of the deponents. If the party fails to produce the deponents of the affidavits filed by the for cross-examination despite order of the court, affidavit of the deponent failing to attend the court has to be ignored. When a party is successful to procure the affidavit, it can well bring the deponent to the court for his cross-examination. His insistence for the issue of process to complete his attendance may to indicate that he is interested in delaying the disposal of the case.
Rajasthan High Court
Chotu Khan vs Abdul Karim on 12 March, 1991
Equivalent citations: AIR 1991 Raj 119, 1991 (2) WLC 219, 1991 (2) WLN 140

Bench: M C Jain


1. This revision petition has been filed against the order of the learned Additional Munsif No. 1, Jodhpur dated November 13, 1990 by which he has rejected the application of the plaintiff-petitioner moved under Order 19, Rule 2(1), C.P.C. for the cross-examination of the deponents of the affidavits filed by the defendant-nonpetitioner in support of his reply to the plaintiff-petitioner's application moved under Order 39 Rules 1 and 2, C.P.C.
2. It had been contended by the learned counsel for the plaintiff-petitioner that the learned trial court has acted with material irregularity and illegality in exercise of its jurisdiction in rejecting the said application, the petitioner has a valuable right to cross-examine the deponents of the affidavits for eliciting the truth. He further contended that the very fact that the non-petitioner has seriously opposed the said application indicates that the deponents of the affidavit could not have stood the cross-examination and the falsity if their affidavits would have been exposed. He lastly contended that it was not necessary to disclose the grounds or points for the cross examination. He relied upon Ram Swaroop v. Bholu Ram, 1989 (2) RLW 300 (D.B,).
3. In reply, it has been contended by the learned counsel for the defend ant-non-petitioner that it cannot be disputed that the court may order the attendance for cross-examination of the deponents but the provisions of Order 19, Rule 2(1), C.P.C. do not empower the court to pass such an order in each and every case, the discretin has been given to the trial court and it has to be exercised in a judicial manner and not arbitrarily or whimsically. He further contended that no valid reason or ground was disclosed by the petitioner in his said application and the application was moved for causing delay in the case. He lastly contended that the trial court has rightly exercised its discretion in this case, no jurisdictional error has been committed by it in rejecting the application and this Court has no jurisdiction to interfere with the impugned order while exercising the powers under Section 115, C.P.C. He relied unon Manick Nandy v. Debdas Nandy and others, AIR 1986 SC 446, Pijush Kanti Gush v. Smt. Kinnori Mullick, AIR 1984 Calcutta 184 and In re Alu Bin Aifan, AIR 1983 A.P. 114.
4. It is well settled law that the provisions of Order 19 of the Code of Civil Procedure apply for deciding an application for grant of temporary injunction under Order 59, C.P.C. (Ram Swaroop v. Bholuram, 1989 (2) RLW 300) and the provisions of Order 19, Rule 2(1), C.P.C. requiring attendance of the deponent for cross-examination are discretionary (Sultan Khna v. Brij Mohan, 1970 RLW 74).
5. The scope of enquiry under Order 39, Rules 1 and 2, C.P.C. is very limited and the rights of the parties are not decided finally. The court may order the attendance for cross-examination of the deponents for good reasons. If it appears to it that the application has been moved with the object of delaying the disposal of the matter or without bona fides, it will reject it. It has been observed in Sultan Khan v. Brij Mohan, 1970 RLW 74 at page 76 para 5, as follows :- -
"On the other hand if the provision contained in Order 19, Rule 2 C.P.C., is taken to mean compulsion and as a rule cross-examination is allowed in interlocutory proceedings, there would be invariably considerable delay in the disposal of the same and it is very likely that in a number of cases delay involved may defeat the object of the application. It is usual, however, to file counter affidavits by the oposite party in rebutting the allegations made in affidavits of the party moving the application. These considerations lean in favour of giving the word 'may' its ordinary meaning in this Rule that is implying a discretion. I am, therefore, of the opinion that under Order 19, Rule 2, C.P.C. It is in me discretion of the court to order the attendance of the deponents for their cross-examination on the affidavits filed by them."
6. The learned trial court has observed in its order under challenge that the petitioner has not pointed out in his application moved under Order 19, Rule 2(1), C.P.C, relevant averments of the affidavits requiring clarification. It has clearly held that the application has been moved without any basis or justification. Para 6 of the said reported judgment runs as under:-- "No circumstances have been disclosed in the application filed by the petitioner in the lower court for permission to cross-examine the deponents as to how and why he considers cross-examination necessary, and none have been pointed even before me by the learned counsel for the petitioner to show that the lower court had not exercised its discretion properly and judiciously in not allowing the cross-examination sought for. To be more precise, no argument was advanced in this respect."
7. It is also clear from the provisions of Order 19, Rule 2, C.P.C. that the court may order the attendance of the deponent for the cross-examination. Order 19 of the Code of Civil Procedure contains no provision empowering the court to issue process to enforce the attendance of the deponents. If the party fails to produce the deponents of the affidavits filed by the for cross-examination despite order of the court, affidavit of the deponent failing to attend the court has to be ignored. When a party is successful to procure the affidavit, it can well bring the deponent to the court for his cross-examination. His insistence for the issue of process to complete his attendance may to indicate that he is interested in delaying the disposal of the case.
8. The trial court has not acted with material irregularity or illegality in passing the order under challenge. It been held in Hindustan Aeronautics Ltd. v. Ajit Prasad, AIR 1973 SC 76 : (1973 Lab IC 407) para 5 as follows at Page SC 77; AIR 1973:--
"In our opinion the High Court had no jurisdition to interfere with the order of the first appellate court. It is not the conclusion of the High Couirt that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law, but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code; See the decisions of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, (1966) 1 SCR 102 : (AIR 1966 SC 153), and D.L.F. Housing & Construction Co. (P) Ltd., New Delhi v. Sarup Singh(1970) 2 SCR 368 : (AIR 1971 SC 2324)."

9. Consequently, the revision petition is dismissed with costs.
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