Interium injuntion.
Suresh Babu Rai
(Querist) 30 April 2013
This query is : Resolved
Section 3 in The Indian Evidence Act, 1872
1. Interpretation clause. - In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:-" Court."" Court" includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence.
Fact : Means and includes-- (1) anything, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious. Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something is a fact.
(c) That a man said certain words is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
(e) That a man has a certain reputation is a fact." Relevant." One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts." Facts in issue : The expression" facts in issue" means and includes-- any fact from which, either by itself or in connection with other facts, the existence, non- existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation : Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, 1[ any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue. Illustrations : A is accused of the murder of B. At his trial the following facts may be in issue: That A caused B' s death; that A intended to cause B' s death; that A had received grave and sudden provocation from B; that A, at the time of doing the act which caused B' s death, was, by reason of unsoundness of mind, incapable of knowing its nature.
1. See now Code of Civil Procedure, 1908 (Act 5 of 1908); as to the settlement of issues, see Sch. I, Order XIV.
Document : Means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations : A writing 2[is a document: 2[Words printed lithographed or photographed are documents: A map or plan is a document: An inscription on a metal plate or stone is a document: A caricature is a document.
Evidence : Means and includes-- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
Proved : A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
Disproved : A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
Not proved : A fact is said not to be proved when it is neither proved nor disproved.
Andhra High Court
Shetty Chandra Shekar And Ors. vs Neeti Ramulu And Ors. on 1 February, 2008
Equivalent citations: 2008 (2) ALD 709, 2008 (2) ALT 463
Bench: N Ramana
01/02/2008
ORDER
N.V. Ramana, J.
1. Aggrieved by the order dated 06.08.2007, passed by the Junior Civil Judge, Kodangal, Mahabubnagar District, allowing the petition in I.A. No. 54 of 2007 in I.A. No. 187 of 2006 in O.S. No. 62 of 2006, filed by the respondents under Order XIX, Rule 2 C.P.C. for the attendance of the deponent for cross-examination on his own affidavit, the petitioners filed this C.R.P.
2. The petitioners are the plaintiffs while the respondents are the defendants. It is the contention of the petitioners-plaintiffs that the Court below committed an error in allowing the present petition in I.A. No. 54 of 2007 filed by the respondents-defendants, and as such, it is liable to be set aside; while it is the contention of the respondents-defendants that the Court below in exercise of its discretion under Order XIX, Rule 2 C.P.C. has rightly allowed the I.A., the same being valid and in accordance with law, no interference is called for therewith, and the C.R.P. be dismissed.
3. Before adverting to the legal principle involved in this case, for better appreciation and adjudication of the matter in dispute, it is just and necessary, to refer to the relevant facts.
4. The present petition in I.A. No. 54 of 2007 was filed by the respondents-defendants under Order XIX, Rule 2 C.P.C. seeking the relief, namely to cross-examine the deponent of the affidavit filed in support of the petition in I.A. No. 187 of 2006. A reading of the contents of the present petition would reveal that the petition in I.A. No. 187 of 2006 was filed by the petitioners-plaintiffs seeking temporary injunction accompanied by an affidavit of one of the petitioners-plaintiffs, namely petitioner-plaintiff No. 1. The respondents-defendants in the present I.A. stated that petitioner-plaintiff No. 1 filed affidavit in the petition in I.A. No. 187 of 2006 with false allegations and contended that the petitioners-plaintiffs are neither owners nor possessors of the suit property, and they have no right whatsoever over the suit schedule property, i.e. the land situated in Sy. No. 27, Farjakhanpet village. Therefore, they sought to summon petitioner-plaintiff No. 1, deponent of the affidavit filed in support of the petition in I.A. No. 187 of 2006, filed by the petitioners-plaintiffs, for grant of temporary injunction, to enable their counsel to cross-examine the deponent, to find out the true facts of the case.
5. The petitioners-plaintiffs filed counter to the I.A. opposing the relief sought for by the respondents-defendants, and reiterated their stand that they are the owners and possessors of the suit schedule property to an extent of one acre. They further stated that their father was the owner of the suit schedule property, and was in possession thereof till his death, and they succeeded to the said property as his legal representatives upon his death. They denied the averments made by the respondents-defendants in the affidavit filed in support of the present petition, and prayed for dismissal of the I.A.
6. Having heard the learned Counsel for the petitioners-plaintiffs and the learned Counsel for the respondents-defendants, and considering the stand taken by the respective parties, the following two questions arises for consideration in the C.R.P.:
(1) whether the Court below was justified in ordering the present I.A. filed by the respondents-defendants under Order XIX, Rule 2 C.P.C. holding that the respondents-defendants counsel is entitled to cross-examine the petitioner-plaintiff No. 1, who swore to the affidavit filed in support of the petition in I.A. No. 187 of 2006, filed by the petitioners-plaintiffs, for grant of temporary injunction?
and
(2) Whether the present petition filed by the respondents-defendants is within the ambit and scope of Order XIX, Rule 2 C.P.C.?
7. Before adverting to the above two questions, a reference to the provisions Order XIX, Rule 2 C.P.C., which deals with the power of the Court to order attendance of deponent for cross-examination, would be appropriate, and the same reads as follows:
2. Power to order attendance of deponent for cross-examination:
(1) Upon any petition 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.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.
8. I t is not uncommon that in proceedings under Order XXXIX, Rule 1 C.P.C. parties file affidavits in support of their respective cases. In case, the Court comes to the conclusion that it is necessary to summon the deponents of the affidavits, in view of the conflicting assertions or to find out the identity of parties, who filed affidavits of same person in support of their respective cases with opposite affirmations, then it can order so. In such circumstances, it cannot be said that the Court had committed an error or illegality in summoning the deponent for cross-examination. The purport of Order XIX Rule 2 C.P.C. appears to be that the Court need not either accept or reject the affidavits filed summarily, and it can consider the said affidavits, and if for valid and good reasons, it can always exercise its discretion to summon the deponent ,of the affidavit, to come to a just conclusion in the interest of justice, and in that regard, power is conferred on the Court to summon the person who had sworn to the affidavit and not the person who filed in support of the petition.
9. A bare perusal of the provisions of Order XIX, Rule 2, would make it clear that the question of ordering attendance for cross-examination of the deponent arises only in cases where the third party affidavits are filed in support of the cases of the respective parties. The language employed in the provision would not indicate conferring of any power on the Court to call a person swearing the affidavit filed in support of the petition, for cross-examination. The affidavit filed in support of the petition shall not be treated, as an affidavit filed by way of evidence, and in this context, it would be relevant, if a reference is made to the provisions of Section 3 of the Indian Evidence Act, 1872, which defines "evidence" to mean and include all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence. In the present case, the respondents-defendants filed the petition under Order XIX, Rule 2 C.P.C. to direct the petitioner-plaintiff No. 1 to come to the Court for the purpose of cross-examination. The question of applicability of the provisions of Order XIX, Rule 2 C.P.C. would arise only in cases where an affidavit was filed in support of the cases of the respective parties i.e. either on behalf of the plaintiff or on behalf of the defendant, by way of evidence, but certainly not an affidavit filed in support of a petition. Since the affidavit filed in support of a petition cannot be treated as evidence, the present petition filed by the respondents-defendants under Order XIX, Rule 2 C.P.C. seeking to summon the deponent of the affidavit filed in support of the petition for temporary injunction, was not maintainable, and more so when it is not the case of the respondents-defendants that they intended to summon petitioner-plaintiff No. 1 because he had sworn to the affidavit by way of evidence to support the case of the plaintiffs. The law is well settled that when affidavits are filed in a proceeding under Order XXXIX, Rule 1 C.P.C. or any other proceedings, and in case the Court entertains a doubt, with regard to the identity of the person or persons who gave the affidavit, then it has the power and discretion to order the attendance of the deponent of the affidavit, for cross-examination so as to come to a just concision, to determine such petition. In such situations, the order passed neither by the Court below to summon the deponent for cross-examination cannot be faulted and such orders can neither be said to be illegal nor beyond the competence of the Court.
9. In the above view of the matter, it has to be held that the present application filed by the respondents-defendants under Order XIX Rule 2 C.P.C. is not maintainable, and the Court below was not justified in ordering the present application holding that the respondents-defendants counsel is entitled to cross-examine petitioner-plaintiff No. 1 who swore to the affidavit filed in support of the petition for grant of temporary injunction, and more so when the present application, does not fall within the ambit and scope of Order XIX Rule 2 C.P.C.
10. For the foregoing reasons, the order passed by the Court below, impugned in the C.R.P. cannot be sustained, and the same is accordingly set aside and the C.R.P. is allowed. No costs.
G. Sudarshan Reddy & others VS Jeevan Lata Srivastava & others.
(1995 (3) ALD 305)
O. 39, R.1 & 2 of CPC :
Both parties to suit claiming possession of the land- Application for injunction should be either ordered or dismissed-Adopting an easy course of granting status quo. NOT PROPER.
Syed Shameer Makandar and others VS Syed Ahmed and other.
1999(6) ALD 187=1997 (1) LS 150
Ex parte interim order of status quo without assigning any reason –Not Valid.
G. Sambrajyam VS P. Mahalakshmamma and other.
(1995(1) ALD 358=1995 (1) ALT 305=1995(1) LS 176)
Interlocutory matters- Marking of documents-Not contemplated under Civil Procedure Code or Civil Rules of Practice.
G. Sambrajyam VS P. Mahalakshmamma and other.
(1995(1) ALD 358=1995 (1) ALT 305=1995(1) LS 176)
Courts cannot examine the merits of the case closely.
Motha Balraj Goud and another VS Padniti Jyothi.
(2008 (1) ALD 743)
O.39. R 1 & 2 of CPC : Temporary Injunction- Order of Status Quo- Grant of not justified, if it would lead to more complications between parties than what existed before filing of the suit.
G. Sambrajyam VS P. Mahalakshmamma and other.
(1995(1) ALD 358=1995 (1) ALT 305=1995(1) LS 176)
Interlocutory application for temporary injunction :
Affidavits filed in connection with the said application-Order 19, Rule 1 does not get attracted- Said applications can be filed only under Rule 2 of Order19.
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Mr.S.Saravanan vs Mr. R.Selvakumar on 7 January, 2011
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property. Therefore, those documents are to be received and marked in evidence. He further submitted that the plaintiffs have already examined P.W.1., and marked 14 documents and these three affidavits would also prove the case of the plaintiffs. Hence, those documents are to be received in evidence and they can be marked on the side of the plaintiffs. The learned counsel also relied upon the judgments reported in (2006) 4 M.L.J. 1061 in the matter of (K.Kasturi and others Vs. C.Mohan and others) A.I.R. (2001) S.C. 1158 in the matter of ( Bipin Shantilal Panchal Vs. State of Gujarat) and (2004) III C.T.C 481 in the matter of ( Meenakshiammal Vs. Gopalakannan), in support of his contention.
4. On the other hand, the learned counsel appearing for the respondent submitted that the documents are sworn to by the persons, who are alive and those affidavits cannot be received in evidence, without producing those persons for cross-examination and even under Order 19, Rules 1 and 2, the affidavits can be received in evidence only subject to the condition that the persons who gave affidavits must be made
plaintiffs to file additional documents at a later stage, eventhough the same was not mentioned in the plaint or not filed along with the plaint. This position has been reiterated in the judgment reported in (2006) 4 M.L.J. 1061(supra). Though a document can be permitted to be received at a later stage, we will have to see whether the affidavits of living persons can be received in evidence during trial. Under Order 19, Rules 1 and 2 of C.P.C. the Court may at any time for sufficient reason order that particular facts may be proved by affidavits on such condition as the Court thinks reasonable. As per sub rule (30 of Order 19 of C.P.C., the Court may at the instance of either party, order the attendance for cross-examination of the deponent, when evidence was given by affidavit. Therefore, by a combined reading of Order 19, Rules 1 and 2, it is made clear that an affidavit can be allowed to be received in evidence only on condition that the deponent must be made available for cross-examination and no party has got right to file the affidavit
Court permits the same subject to the condition stated under Order 19, Rules 1 and 2 of C.P.C. This has been made clear in the judgment reported in A.I.R. (1949) Madras 689 wherein it has been held as follows:-
" Affidavit evidence is not permitted except where there is an agreement between the parties that evidence may be taken by affidavit or where under Order 19, Rule1 of C.P.C. there is an order of Court that particular facts may be proved by an affidavit or that affidavit of any witness may be read at the hearing. Hence, the only basis on which the affidavit of a living person not called into the witness
box can be acted upon as admissible evidence as that should be capable of being regarded is a statement in writing complying with the conditions prescribed in Section 32 of the Indian Evidence Act. "
6. Further, the Hon'ble Supreme Court in the judgment reported in 1988 S.C. 1381 ( Sudha Devi Vs. M.P.Narayanan ) has held that the affidavits are not included in the definition of 'evidence' in Section
Evidence Act and can be used as evidence only if for sufficient reason, the Court passes an order under Order 19, Rule 1 or 2 of C.P.C. As per Order 19, Rules 1 and 2, the Court can permit the affidavit to be filed on condition that the defendant being available for cross- examination and it is not open to the revision petitioners to file an affidavit and request the Court to receive the same in evidence as of right. The other decisions relied upon by the learned counsel appearing for the revision petitioners will not apply to the facts of the present case on hand.
7. Therefore, I am of the opinion that the Court below, considering all these aspects has rightly dismissed the application and hence, I do not find any reason to interfere with the order of the Lower Court and hence, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed
sd
To
The Learned XV Assistant Judge,
City Civil Court
Chennai
Morning Members!
The petitioner/plaintiff has filed a suit for perpetual injunction and also filed an IA therein under 39, R.1 & 2 of CPC against Respondents/Defendant No.4. The Hon’ble Court pleased to issue urgent notices to the respondents and fixed the date of appearance on 15.04.2013. On that date I have filed my memo offering to file my vakalath on behalf of all the respondents and requested time for filing of counter defending the subject matter of the suit. The petitioner prayed to pass status quo orders till the date of my request as such the court pleased to direct us to maintain status quo and posted the matter to 22.04.2013. On the said date I have filed my detailed counter clearly and categorically stating the true facts behind back of petition under O.39, rule 1 and 2 of CPC. In fact the petitioner before filing of the suit has executed a GPA to the respondent No.1 and the respondent No.3 have purchased the same through a Regd. Sale Deed in which the petitioner/plaintiff acted as principal vendor as per the provisions of Indian Registration Act. I have also filed two third party affidavits of neighbors of respondent No.3 denying the possession of the petitioner/plaintiff over the suit house along with their attested copies of ration cards for the proof of their identity.
The petitioner/plaintiff with an intention to drag the matter have filed a petition under 19, rule 2 to summon the third parties for the purpose of cross examine them to illicit the truth in the IA filed under order 39, rule 1 and 2 of CPC.
I have filed a counter showing the ill intention of the petitioner to drag the status quo orders passed in O.39; R. 1 & 2 of CPC the petitioner has filed the present application as the justice delayed is justice denied. It is not the junction to cross examines the third parties to decide the O.39 R.1 and 2 and they can summon in the main suit and court can frame an issue in this regard and can settle that issue in the main suit. The matter is posted for arguments of both sides.
Any suggestions please…
Thank you one and all.
V R SHROFF
(Expert) 30 April 2013
Dear Advocate Rai:
if u put your problem in few lines, it shall be readable. All ur queries are lengthy and academic.
ajay sethi
(Expert) 30 April 2013
be brief and to the point . you have posted such a exhaustive query . in short at the stage of hearing of interim application court is not required to grant any application for cross examination .
court is only required to examine whwether prima facie case is amde out for grant of ad interim reliefs . if necessary court amy expedite final hearing of the suit
R.K Nanda
(Expert) 30 April 2013
query too long to reply.
prabhakar singh
(Expert) 30 April 2013
It appears the Querist has not stated any problem rather laws he understands.
Suresh Babu Rai
(Querist) 01 May 2013
Sorry sir !
Due to oversight I have tagged (Copy & Paste) my entire file which I have prepared for arguments in the above matter. But the last Paragraph is my needful. I am very much sorry for wasting the time of my seniors.
Thank you one and all for proper response.
Raj Kumar Makkad
(Expert) 01 May 2013
The application moved by the plaintiff is not maintainable and he shall not be provided the opportunity to lead evidence on the basis of affidavits filed by you to rebut his claim. The plaintiff has to stand on his own legs and he has to prove prima-facie case, balance of convenience and irreparable loss at the same time which he cannot prove in the light of given facts.
