HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CIRIL REVISION PETITION Nos.[SECTION][SECTION]48 of [SECTION]014 and batch 19-11-[SECTION]014 [ENTITY].Petitioner [ENTITY] and [SECTION]97 others . Respondents #[ENTITY].Petitioner $[ENTITY] and [SECTION]97 others.Respondents Counsel for the Petitioner : Sri [ENTITY] Counsel for the Respondents: Sri [ENTITY] <Gist : >Head Note: ? Cases referred: 1. Laws (All) 197[SECTION]([SECTION]) page 10 [SECTION]. AIR 1981 AP 406 3. [SECTION]008([SECTION]) ALD 709 (AP) 4. ([SECTION]004)1 SCC 70[SECTION] [SECTION]. 199[SECTION](1) ALT 30[SECTION] 6. ([SECTION]003)6 SCC 680 HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO CIVIL REVISION PETITION Nos.[SECTION][SECTION]48 & [SECTION][SECTION][SECTION]1 of [SECTION]014 COMMON ORDER :
Both these revision petitions are filed by M/s.Nadella Estates Private Limited represented by its Managing Director who is no other than plaintiff in O.S. No.[SECTION]09 of [SECTION]00[SECTION] and O.S. No.[SECTION]7 of [SECTION]007 respectively pending on the file of Senior Civil Judge, Sangareddy. Pending the suits for perpetual injunction i.e., O.S. No.[SECTION]09 of [SECTION]00[SECTION] in respect of Ac.16-06 gts in S.No.[SECTION]1 and Ac.6-3[SECTION] Guntas in S.No.[SECTION][SECTION] of Kollur Village, Ramachandrapuram Mandal against defendants 1 to 3 and O.S. No.[SECTION]7 of [SECTION]007 also in respect of same survey numbers against 4 defendants therein. It is to say the 3 defendants in O.S. No.[SECTION]09 of [SECTION]00[SECTION] are [ENTITY], [ENTITY] and [ENTITY], whereas the 4 defendants in O.S. No.[SECTION]7 of [SECTION]007 are [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. Thus, the two suits maintained by same plaintiffs for self same property and before the same Court one against the three defendants and the other against 4 different defendants. It is pending the suits the third parties total [SECTION]98 persons representing by their G.P.A holders [ENTITY], [ENTITY] and [ENTITY] filed I.A. No.1[SECTION]9[SECTION] of [SECTION]008 in O.S. No.[SECTION]09 of [SECTION]00[SECTION] and also I.A. No.1[SECTION]90 of [SECTION]008 in O.S. No.[SECTION]7 of [SECTION]007 under [SECTION] [ACT] to implead them as defendants 4 to 301 in O.S. No.[SECTION]09 of [SECTION]00[SECTION] and [SECTION] to 30[SECTION] in O.S. No.[SECTION]7 of [SECTION]007 with claim that they have purchased part and parcel of the land in various survey numbers covered by the plaint schedule (which is same in both the suits). The said petitions were initially dismissed by the learned trial Judge by orders dated [SECTION]3.09.[SECTION]0[SECTION] and when the said third parties who proposed to come on record as co-defendants supra maintained two separate revisions vide C.R.P.No.4738 and 4481 of [SECTION]0[SECTION] before this Court vide separate orders by this Court (another bench) dated [SECTION]7.1[SECTION].[SECTION]0[SECTION] set aside the dismissal order and restored the two petitions by remitted for consideration afresh. Thus, the I.A. No.1[SECTION]9[SECTION] and 1[SECTION]90 respectively in the two suits filed by same third parties to come on record as co-defendants are not pending before the trial Court.
[SECTION]) It is while so, the proposed parties filed applications to receive documents which are certified copies of sale deeds in support of their contention of their purchases for part of the respective plaint schedule in showing they are the necessary parties to come on record in opposing the suit lis of the plaintiff in both suits.
3) It is while so, the plaintiff in both suits M/s.Nadella Estates Limited in the pending, third parties implead applications viz., in I.A. No.1[SECTION]9[SECTION] of [SECTION]008 in O.S. No.[SECTION]09 of [SECTION]00[SECTION] filed I.A. No.316 of [SECTION]014 and equally I.A. No.1[SECTION]90 of [SECTION]008 in O.S. No.[SECTION]7 of [SECTION]007 filed I.A. No.3[SECTION] of [SECTION]014, for the self same purpose under [SECTION] [ACT] to summon the deponent of I.A. No.1[SECTION]9[SECTION] of [SECTION]008 as well as I.A. No.1[SECTION]90 of [SECTION]008 for the purpose of cross-examination to elicit the truth with averments that in filing the applications in I.A. No.1[SECTION]9[SECTION] and 1[SECTION]90 of [SECTION]008 respectively the deponent misrepresented the facts and have taken inconsistent stand. The I.A. No.316 of [SECTION]014 and I.A. No.3[SECTION] of [SECTION]014 were ended in dismissal by separate orders of the learned trial Judge dated 30.06.[SECTION]014.
4) It is now, impugning said dismissal orders (of summoning for cross- examination of the deponent of the implead petitions) the present revisions are maintained viz., C.R.P. No.[SECTION][SECTION]48 of [SECTION]014 against I.A. No.316 of [SECTION]014 and C.R.P. No.[SECTION][SECTION][SECTION]1 of [SECTION]014 against I.A. No.3[SECTION] of [SECTION]014 respectively with self same grounds of revision in both with contentions as well as the oral submissions of the said revision petitioner in both that the impugned orders of the learned trial Judge are bad in law, contrary to facts on record and liable to be set aside and the trial Court failed to see that in the suit for bare injunction with specific cause of action confined to respective defendants 1 to 3 in O.S. No.[SECTION]09 of [SECTION]00[SECTION] and 104 in O.S. No.[SECTION]7 of [SECTION]007 respectively; the impleadment of the petitioners in I.A. No.1[SECTION]9[SECTION] and 1[SECTION]90 of [SECTION]008 respectively which they sought would altogether change the nature of suit and scope of enquiry and rejection of the application to summon them for cross-examination amounts to failure to exercise the jurisdiction vested in by the Court below and for the reason that the proposed parties for completely unconnected with the suit cause of action and the lower Court grossly erred in not considering the law laid down in the decision cited by the Petitioners herein, the trial Court should have seen that the remedy for grievance of the proposed petitioners (third parties to come on record as defendants) lies elsewhere for they have no locus standi to interdict the suit between the plaintiffs and the defendants on record, that the trial Court should have seen that the circumstances leading to filing of the applications to summon the deponents for cross-examination are in the proper perspective to allow rather than dismissal without proper appreciation of facts and circumstances showing the necessity to cross- examine the deponent and hence to set aside the dismissal order and allow the petitions by allowing the revisions.
[SECTION]) Whereas, the counsel for the revision-respondents (who are petitioners in I.A. No.1[SECTION]9[SECTION] of [SECTION]008 in O.S. No.[SECTION]09 of [SECTION]00[SECTION] who are same petitioners in I.A. No.1[SECTION]90 of [SECTION]008 in O.S. No.[SECTION]7 of [SECTION]007) contend that the impugned orders passed by the learned trial Judge dismissing the I.A. Nos.3[SECTION] and 316 of [SECTION]014 filed under [SECTION] [ACT] to summon the deponent of I.A. No.1[SECTION]9[SECTION] and 1[SECTION]90 of [SECTION]008 are just and on correct lines and no way require interference, for this Court while sitting in revision for no improper exercise of jurisdiction muchless to the sufferance and prejudice of rights of revision petitioners and thereby sought for dismissal of the petitions.
6) Now, the common points that arise for consideration are:
(i) Whether the impugned orders of the learned trial Judge in dismissing the applications in I.A. No.316 of [SECTION]014 and 3[SECTION] of [SECTION]014 (filed by the plaintiff) to summon the deponent of I.A. No.1[SECTION]9[SECTION] of [SECTION]008 and 1[SECTION]90 of [SECTION]008 for cross-
examination, in deciding their applications to come on record as necessary and proper parties are unsustainable and require interference by this Court while sitting in revision and if so, to what extent and with what observations?
(ii) To what result. POINT No.1:
7) Before coming to decide with reference to the facts referred supra, coming to the scope of order I [SECTION] [ACT] it speaks that:
[SECTION]. Suit in name of wrong Plaintiff.- (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
([SECTION]) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.
8) As per the above wording particularly of [SECTION], the Court may at any stage of proceeding either upon or without application of either party order name of any party who ought to have been joined as plaintiff or defendant or whose presence before Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit be added.
Therefore, the power to add a party is either on application or on suo motu by Court of its own motion to be based on judicial discretion irrespective of consent of the party or opposite party concerned to the lis. So far as necessary party concerned, he must have direct interest in the subject matter of the suit though a proper party may have remotely or indirectly interested in the subject matter of the lis. Needless to say [SECTION] of the [ACT] also relaxing of the rigor of limitation for the addition of parties as follows:
[SECTION]. Effect of substituting or adding new plaintiff or defendant.- (1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
([SECTION]) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.
9) From this, now coming to the applications ended in dismissal that impugned in the revison, in the implead petitions for its decision the deponents, sought to be cross-examined by the plaintiffs invoking [SECTION] [ACT] concerned, [SECTION] speak the following:
[SECTION]: [SECTION]. Power to order any point to be proved by affidavit.- 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:
Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.
[SECTION]. Power to order attendance of deponent for cross- examination.- (1) 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.
([SECTION]) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.
[SECTION]. Matters to which affidavits shall be confined.- (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted:
Provided that the grounds thereof are stated.
([SECTION]) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the party filing the same.
10) A combined reading of [SECTION] and [SECTION] speak that to use as evidence of the deponent whose affidavit given where the other party desires for cross-examination the Court shall permit cross-examination and without that order shall not be made authorizing evidence of such witness to be given by affidavit as per [SECTION] to say the same is during trial to use in evidence, the cross-examination of the deponent, where the other party desires shall be permitted. Whereas under [SECTION] in any application evidence may be given by affidavit and the Court may permit at the instance of either party for cross-examination of deponent to say it is optional and discretionary in case of cross-examination of deponent of an interlocutory applicaton - - - - -. The lower Court in the impugned orders observed that as per the expression of the Allahabad High Court in [PRECEDENT] , the party got right to request the Court to call the witness for cross-examination to read in evidence during trial as per [SECTION] and [SECTION] [ACT] Whereas, in that case, there were conflicting affidavits filed by the parties and Court held necessary to cross-examine them. In [ENTITY] V. V.K.Manohar Rao in an injunction application under [SECTION] [ACT] an application under [SECTION] maintained requesting to summon the deponent for cross-examination that was dismissed with observation of Court has no jurisdiction to summon and the same was set aside in revision by the High Court in holding it as failure to exercise the jurisdiction in saying as if no jurisdiction. However, the principle of law laid down in the two cases no way applies to the case on hand and that in another decision of [ENTITY] V. Neeti Ramulu it was held that in an application for temporary inujunction, petition filed to summon the deponent for cross-examination under [SECTION] i.e., of the deponent/plaintiff/petitioner sought by defendant/respondent of injunction petition, it was held that affidavit filed in support of the petition cannot be treated as evidence and the application of the defendant is not maintainable was the order that was set aside with observation that it is always for Court to exercise its discretion to summon the deponent of an affidavit to come to a just conclusion in the interests of justice. Further, the question of ordering attendance for cross-examination arises in cases only where third party affidavits are filed in support of the contention of the respective parties and the affidavit filed in support of the petition shall not be treated as an affidavit filed by way of evidence since such affidavit does not come under the purview of [ACT]. The trial Court therefrom observed the principle laid down in [ENTITY] supra is applicable to the case on hand as the deponent to be summoned is one of the petitioners in [SECTION] [ACT] and not a third party affidavit deponent. (In [ENTITY] (supra) the earlier decision of [ENTITY] (supra) was not brought to notice of the Court to refer or consider on the scope). It is also observed by the learned Senior Civil Judge that as per the remand revision orders of the Honourable Court in I.A. No.1[SECTION]9[SECTION] and 1[SECTION]90 of [SECTION]008, order I [SECTION] petition is to be heard afresh and pending the same for hearing the third parties-petitioners who want to come on record as co-defendants filed the document applications and the same were allowed from the plaintiff and defendants as respondents stated no counters and not opposed to receive to say if they got any grievance against genuineness and authenticity on the document they can submit their oral arguments in hearing the [SECTION] petitions and thereby there are no valid reasons to allow their applications to call for cross-examination of the deponent invoking [SECTION] [ACT] in dismissing the same there from.
11) The contentions in the revision petitions as referred supra, needless to repeat is mainly that [SECTION] [ACT] no way makes different between a third party-deponent or party deponent but for deponent who gave affidavit in support of the application, as evidence in that application (interlocutory) and the documents petition merely because received without counter or opposing the same does not mean there is no right to direct for cross-examination of the deponent.
1[SECTION]) Whereas, it is the contention of the proposed parties as respondents to the applications mainly at the cost of the repetition that the order is not based solely on the expression of this High Court in [ENTITY] but also on other facts for no grounds to summon for cross-
examination that too when the documents are received without objection to its receiving on petition in support of the implead petitioners contention of having right over the property to come on record as necessary parties and hence to dismiss the revision.
VI. Law of Evidence Reception of affidavit in evidence:
(a) [SECTION] [ACT] says that the [ACT] applies to all Judicial Proceedings in or before any Court but not to affidavits presented to any Court or officer not to proceedings before an arbitrator. So application of the [ACT] does not extend to mere affidavits.
(b) (i) In [SECTION].[ACT]; definition of evidence is an inclusive definition. It is in-fact not an exhaustive definition. It says 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 enquiry; such statements are called oral evidence.
[SECTION]. All documents including electronic records (as per amendment Act [SECTION]000) produced for the inspection of the Court, such documents are called documentary evidence.
[SECTION]) So, for statements made in the affidavits by itself though [ACT] has no application under [SECTION] of the Act, once the Court either permits the statements or requires to be made before it by witnesses in relation to matters of fact under enquiry, the same tantamounts to evidence to say [ACT] applies to the same statements in affidavit received by Court. To further clarify, it is also read [SECTION] and the Co- relation between Or.XVIII and Or.XXVI before considering the difference between [SECTION], [SECTION].
(i) [SECTION] says that i) In every case the examination in chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him (for evidence) provided, proof and admissibility of documents filed and relied, with affidavit shall be subject to the orders of the Court.
(ii) The evidence in cross examination and re-examination of the witness whose evidence (examination-in-chief) by affidavit taken by the Court or Commissioner and while recording evidence by the Commissioner, he may record such remarks as it thinks material respecting the demeanor of the witness and any objection raised during recording of evidence before Commissioner, shall be recorded by the Commissioner and be decided by the Court at the stage of arguments. {The Commissioner shall submit his report within 60 days from the date of issue of the commission}. For recording of evidence by commissioner by execution of commission warrant the provisions of [SECTION], [SECTION], [SECTION], [SECTION] & [SECTION] shall apply.
(iii) The [SECTION] starts with wording that in every case the examination in chief of a witness shall be on affidavit. Its literal meaning clearly indicates only to the effect that the chief examination of a witness shall be on affidavit. This wording got its own importance to a reasonable conclusion that the affidavit by itself is not evidence in chief examination. It is only when the affidavit filed in Court is taken by Court as chief examination the statement of facts contained in the affidavit amounts to evidence in chief examination though to say irrespective of [SECTION] of [ACT], [SECTION] [ACT] permits affidavit in evidence enabling the Court to receive as evidence. It is also because, though the heading of [SECTION] speaks about recording of evidence out of the 8 sub rules to the [SECTION] neither in [SECTION] nor in the proviso to it there is any mention or whisper of the word evidence since affidavit by itself is not evidence. The [SECTION] have mention of the word evidence. It got its own significance. It is from the close reading of [SECTION]; it clearly indicates that the affidavit by itself is no evidence even it is filed in Court by party deponents or by any other deponents as witnesses to support the respective case of the parties. Once affidavit is filed, the Court has to receive whether the Court is bound to take the entire affidavit contents despite some irrelevant and inadmissible portions therein is another debatable point.
(iv) Coming to the interpretation of the word shall in [SECTION] the Apex Court in the Salem Advocates Bar Association Case in AIR [SECTION]003 Supreme Court [SECTION]9 at paras [SECTION] to 19 observed that from the reading of [SECTION] and [SECTION] together, it is evident that [SECTION] applies to a case where a party to a suit without applying for summoning brings any witness to give evidence or produce any document, examination in chief of such witness not to be recorded in Court but shall be in the form of an affidavit. Whereas a witness is summoned the Court can direct to file affidavit or can give option to the witness either to file affidavit or to be present in Court for his examination and the Court can even record evidence in part and direct Court commissioner to record in part. It is also needful to refer the expression of the Apex Court in [PRECEDENT] on the scope of [SECTION], [SECTION] and [SECTION] [ACT]
(v) From the above reading of [SECTION] [ACT] and [SECTION] it may be easy to contend that (a) since the [ACT] and [ACT] being procedural laws, the provision in [SECTION] [ACT] prevails over [SECTION] of [ACT], as such, the [ACT] when it is not applicable the procedure laid down to [SECTION] there is no need to consider [SECTION] of [ACT]. (b) It may also be easy to say that [ACT] is only a sort of guidance for appreciation of evidence and appreciation of evidence is not confined to provisions of the [ACT], since there are other Acts on substantive and procedural aspects in appreciation, as such, even evidence act doesnt extend to affidavits, the affidavits as per [SECTION] filed in Court for chief examination by that enabling provision is the material on record as form part of Court record to appreciate without aid of or guidance from, the provisions of [ACT].
(d) The above contentions if raised are untenable for the reasons that (1) There is no wording in Or.[SECTION] R.4 (1) to say that chief examination by affidavit is evidence. It is not even stated as affidavit is part of Court record to read. The provisions further speak about cross examination and re-examination after a deponents affidavit became his chief examination. It is to mean affidavit can be taken as chief examination evidence by Court, for that, law of evidence guided by [ACT] has to apply. After that for cross examination [ACT] automatically applies. Apart form it, ([SECTION]) the affidavit- for chief examination filed as per [SECTION], for no express bar though taken as part of Court record to read as evidence, it shall not have that sanctity, like a commissioners report for the fact that commissioner is an officer of the Court and order [SECTION]6 [SECTION] and R.8 R/w Or.[SECTION]6 A (by A.P.Amendment) says report and evidence taken by Commissioner be read as evidence. (3) Further it is not like arbitration proceedings to say [ACT] & [ACT] despite made not applicable specifically by [SECTION] of the Act 1996, the Arbitration proceedings can contain recording of evidence for appreciation and to pass reasoned award. There infact [SECTION] enable the parties to agree to the procedure to be followed or an Arbitrator can follow his own appropriate procedure to conduct proceedings. In Or.[SECTION] R.4 there is no such provision.
(i) Thus the conclusion from the above is, without guidance and aid from the provisions of [ACT], there will be a lot of practical difficulty in reality in appreciation of evidence as such application of [ACT] provisions are necessary in reality and that is also thereby taken care of to some extent in [SECTION].
(e) Now from this point in view, coming to [SECTION] [ACT] and [SECTION] [ACT], though [SECTION] [ACT] says application of [ACT] doesnt extend to affidavits, (i) whether for affidavit filed in Court once the Court taken the affidavit as chief examination while implementation of [SECTION] [ACT], is the character of affidavit changes to the character of chief examination evidence and if so, is it not that the bar under [SECTION] [ACT] ceases from that movement, to apply the provisions of [ACT] [SECTION]? (ii) If not, is it not that, [SECTION] [ACT] requires amendment at least by adding an explanation to [SECTION] [ACT] to the effect that an evidence affidavit once taken as chief examination, the character of affidavit ceases and assumes the character of chief examination evidence? To decide the same it is necessary to some extent to dwell into the scope of [SECTION] [ACT], [SECTION] [ACT], the [ACT] [SECTION] and similar provisions in other enactments and decided cases on the aspects, for sufficient guidance.
VII. Study of similar provisions in [ACT] and [ACT] with reference to decided cases:
(a) In AIR 1988-SC-[SECTION]81= 1988(3) SCC 366; [PRECEDENT] ; [PRECEDENT] ; [PRECEDENT]; [PRECEDENT] it was held that, affidavits are not included in the definition of Evidence u/[SECTION] [ACT]. Affidavits can be used as evidence only if for sufficient reason Court passes an order.
(b) In 1968 AIR Calcutta [SECTION]3[SECTION] at [SECTION]37 relying on AIR 1939 Cal. 6[SECTION]7; [PRECEDENT]; AIR 19[SECTION]3- Nag. 169 & [PRECEDENT] held that Affidavit per-se does not become evidence in the suits but it can become evidence only by consent of the parties or where it is specifically authorized by a particular provision of law (through a particular procedure)
(c) In AIR 1989 Supreme Court 70[SECTION] at page 710 para 11 it was held in a Criminal Case on admissibility of affidavit of defence witness, that [SECTION] [ACT] contemplates oral and documentary evidence. In case of living persons, evidence in judicial proceedings must be tendered by calling the witness to witness box and cannot be substituted by affidavit,
(i) unless law permits it or (ii) the Court by order expressly allows it. (The power of the Court to take an affidavit as evidence)
d) From the above, coming to [SECTION] and [ACT] ([SECTION])
(i) In 199[SECTION](1) ALT-30[SECTION] at page 306 and at paras 1[SECTION] & 16 in [ENTITY] case by following AIR 198[SECTION]- Karnataka - page 81 and AIR- 1978 A.P.103, the distinction between [SECTION] &[SECTION] laid down. The reading of the judgment with reference to [SECTION] clearly indicates that an affidavit by itself is no evidence since it is not included in [SECTION] [ACT] and specifically excluded by [SECTION] [ACT]. But, the Courts may permit proof of any fact or facts by means of affidavit evidence under [SECTION].
(ii) The proof used in [SECTION] is in the sense to mean final proof and not prima-facie proof. Whenever any fact or facts permitted by Court to be proved by means of an affidavit of a witness of a party, if the opposite party desires presence of deponent to cross examine, the Court should not accept the affidavit as evidence under [SECTION] [ACT] as per its proviso.
(iii) As per [SECTION] for proof prima -facie (and not final proof on merits) upon application of party to give evidence by affidavit filed in Court, when the Court not using the affidavit as evidence, the party may produce the deponent for cross examination by opposite party or the Court can, call the deponents presence for cross examination by opposite party at the instance of either party.
(iv) If we read in this contest the [SECTION] for the above distinction between [SECTION] and [SECTION], it makes the scope further clear, since as per [SECTION], the scope of facts that can be confined in the affidavit of a deponent are for final proof, such facts to state which the deponent is able to prove from his personal knowledge and for prima-facie proof in interlocutory applications the statements of the deponents belief are also admissible provided the grounds thereof are stated.
(v) The [ACT] [SECTION] deals with affidavits for use in judicial proceedings to read in support of an application so also counter affidavits in reply to affidavit contents and the Court got power to direct the deponents for cross examination.
e) In AIR 1973 Punjab [SECTION]10 it was held that the ordinary rule is that, a decision on facts of a case must be decided on evidence recorded viva-voce in Court as provided by [SECTION] [ACT]. This procedure can be dispensed with where either party agree or any law permits or the Court makes an order to decide the case on affidavits evidence with opportunity to opposite parties for cross examination. In this contest it can also be verified AIR 1967 A.P. [SECTION]0[SECTION] at part (D).
f) From this legal position the areas where law permits evidence by affidavit for proof which may either for final proof or for prima facie proof as the case may be are
(i) [SECTION] [ACT] permits evidence by affidavit in proof of conduct of a public servant.
(ii) [SECTION] [ACT] (old [SECTION]) permits evidence of formal character by affidavit. See AIR 197[SECTION] S.C. [SECTION]639 (para 44)
(iii) [SECTION]6 of the [ACT] permits evidence of formal character to prove by affidavit.
(iv) [SECTION] [ACT] says Court may order any fact to be proved by affidavit.
(v) Or.19 [SECTION] to 3 as detailed above in para 4 (d), says that any Court may at any time order that a particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing on such condition as the Court thinks reasonable.
(vi) The above provisions and propositions, to a considerable extent are exception to the general rule in [SECTION] [ACT] that [ACT] does not extend to affidavits. These provisions enable the Court to permit (i) any party to prove any facts by affidavit.
(vii) In AIR 1964 S.C. 96[SECTION] it was held that facts in the affidavit un- controverted by opposite party can be deemed as admitted to rely.
14) On the scope and difference between the [SECTION] and [SECTION] [ACT] in addition to what is stated supra, it was held in [PRECEDENT] that:
[SECTION] of the [ACT] contemplates proof of affidavits in interlocutory proceedings. The same rule contemplates that the Judge may in any case direct evidence to be given orally and thereupon the evidence shall be recorded and exhibits be marked in the same manner as in a suit when lists of witnesses and exhibits shall be prepared. It is clear that such a rule is incorporated in view of [SECTION] of [ACT] and also [SECTION] of [ACT] [SECTION] of [ACT] specifically mentions the use of affidavits or affidavits to prove the ingredients of (a) to (c) of the provision, whereas [SECTION] of [ACT] conspicuously omits to do so. That is why in [PRECEDENT], our own High Court authoritatively held that in deciding an application under [SECTION] of [ACT] in view of the urgency involved, the Court is expressly authorised to decide the point on affidavits. It was also held therein that [SECTION] and [SECTION] do not arise at all. The scope and the implication of the rule is thus stated therein:
" 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 dispensed 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 [SECTION], the question of summoning the deponent for the purpose of cross-examination at the instance of a party under [SECTION] and [SECTION], does not arise at all. The power given to the Court under [SECTION], to decide the matters by affidavits is unfettered and is not subjected to the provisions of [SECTION] and [SECTION]. In short, the provisions of [SECTION], [SECTION] and [SECTION] have no application at all to interlocutory matters governed by [SECTION]".
It is apparent that the Court was dealing with the proof of facts by affidavits only with reference to the applications under [SECTION] of [ACT] The question whether [SECTION] and [SECTION] is applicable to interlocutory applications was not the subject matter of the decision muchless that is considered. It is also clear that the absence or use of affidavits for injunctions under [SECTION] [ACT] was not considered in the decision supra. Therefore, it appears that the matter was not exhaustively dealt with muchless any decision is rendered on that question. Therefore, in the context of what has been done in the present case by the two Courts below, this Court has felt the necessity to elaborate the legal position regarding use of affidavits in such situations. The law appears to be that affidavit is no evidence since it is not included in the definition of 'evidence' Under [SECTION] of the [ACT] and it is specifically excluded by [SECTION] of the [ACT]. But the Courts may permit the proof of any fact by means of affidavit under [SECTION] and [SECTION] of [ACT] The precedents of various High Courts appear to be in favour of such a general rule (Page 1[SECTION] of [ENTITY] on Evidence).
16. To understand the true and correct legal implications about the use and value of the affidavits, [SECTION], [SECTION] and [SECTION] of [ACT] may be repeated thus:
The implications of [SECTION] and [SECTION] of [ACT] in relation to the affidavits appear to have been exhaustively dealt with in B.R. [ENTITY] v. Shivalingaiah, . Therein a clear distinction between [SECTION] and [SECTION] of [ACT] is noted. Affidavits contemplated in [SECTION] are affidavits taken by way of evidence in order to prove particular fact or facts. Prove or proof in the sense in which that word is used in [SECTION] means final proof and not prima facie proof. Such a distinction is drawn from the expressions of the learned author [ENTITY] as follows:
" Prima facie evidence only means that there is ground for proceeding, it is not the same thing as 'proof which comes later when the Court has to find whether the accused is guilty. Because a Magistrate has found a prima facie case to issue process, it is a fallacy to say that he believes the case to be true in the sense that it is proved. Prima facie evidence which if accepted appears to be sufficient to establish a fact unless rebutted by acceptable evidence to the contrary. It is not conclusive".
That is how whenever a fact is permitted to be proved by means of an affidavit of a witness if the other side desires that such a witness should be produced before the Court for cross-examination, the Court should not accept that evidence given in the form of affidavit. That is why in the proviso to [SECTION] it is stated that an order shall not be made authorising the evidence of such witness to be given by affidavit. But that is not the case in regard to [SECTION] of [ACT] The distinction of the two rules is marked by the learned Judge in [ENTITY]'s case (supra) as follows:
" Here a descretion vests in the Court both in the matter of taking evidence by way of affidavits and also in ordering the attendance of those persons for cross-examination. Further, if [SECTION] contemplates affidavits in proof of facts; [SECTION] contemplates affidavits in support of or against applications. It is true that there are provisions in the Code and in several statutes providing for filing of applications claiming substantive reliefs. Any relief finally granted in such cases can be said to have been given on a particular fact or set of facts proved. To such cases, it can be said, [SECTION] is attracted. But [SECTION] which does not contemplate any such proof of fact or facts may be construed as one applicable only to applications claiming interim reliefs like a temporary injunction, appointment of a receiver. appointment of a guardian ad litem and the like".
Therefore, it is apparent both from the provisions supra and also the case law on the question that notwithstanding any provision of [ACT] or similar law contemplates, for proof prima facie-affidavits may be permitted to be produced under [SECTION] of [ACT] provided the proof contemplated is only prima facie and not the proof on merits, in which case a party may desire the deponent of the affidavit to be produced before the Court when the Court may not use the affidavit by way of evidence or it can call such witness for cross-examination by the adversery. This supplements the absence of use of affidavits in any provision like [SECTION], [SECTION] of [ACT] by virtue of [SECTION] of [ACT] and not otherwise. To conclude, the law appears to be square on the question that affidavit is no evidence in view of [SECTION] of [ACT], but it assumes the character of evidence for certain purposes as stated above in view of [SECTION] and [SECTION] of [ACT] and also in view of the definition of 'evidence' Under [SECTION] of the [ACT].
Further, it was held by the Rajastan High Court in Lookman vs Indra Singh - dated 4th April, [SECTION]00[SECTION]= RLW [SECTION]003 ([SECTION]) Raj 1196 that:
[SECTION]. It is settled legal proposition that affidavit is not an evidence within the meaning of [SECTION] of the [ACT] as held by the Courts in [PRECEDENT], [ENTITY] v. Navratan Mal Jain and Anr., AIR 1990 Raj. 1[SECTION]7, S. Sukumar v. Spl. Commissioner of Commercial Taxes, Madras, AIR 1991 Mad. [SECTION]38 and Glorious Plastics Ltd. v. Laghate Enterprises and Ors., AIR 1993 Bom. [SECTION][SECTION]4.
6. In [ENTITY] Devi v. M.P. Narain and Ors., AIR 1988 SC [SECTION]81, the Hon'ble Supreme Court held that affidavits are not included in the definition of "evidence" in [SECTION] of the [ACT] and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order Under [SECTION] & [SECTION] of the Code. Similar view has been reiterated in Range Forest Officer vs. S.T. Hadimani, [SECTION]00[SECTION] (3) SCC [SECTION][SECTION], wherein the Apex Court held that filing of an affidavit only of his own statement in his favour cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion of a particular fact-situation.
7. This Court, in [PRECEDENT], held that a decree passed solely and wholly on the basis of affidavits filed before the Court cannot be treated as a decree based on evidence. In [ENTITY] (supra), the Court was dealing with an application that petitioner therein had been dispossessed from the land in dispute inspite of the interim order of the Court. It was observed that:- "In view of the order of the trial Court that there was no order under [SECTION] [ACT], the affidavits filed by the parties without giving an opportunity of cross-examine the deponents, cannot be treated as evidence in the law, and in that event there was no material on record worth the name before the trial Court to come to the conclusion "
8. In Bhairon Lal and Anr. v. Chandmal and Anr., 1993 ([SECTION]) RLR 764, this Court has taken a view that miscellaneous application may be decided and interlocutory orders may be passed on the basis of affidavits without there being order of Court under [SECTION] and [SECTION]. However, that case stood on a different footing and the facts are quite distinguishable
9. On the contrary, in Smt. Anusuya v. Poona Ram, Civil Reveision No. 6[SECTION]0/199[SECTION], decided on 1[SECTION].1.93 dealing with the same issue, this Court held that :- "It is not required that elaborate reasons are to be given for granting permission to cross-examine the deponent of an affidavit. As a matter of fact, unless there are some weighty reasons to refuse the permission to cross-examine the deponent of an affidavit, or it can be said that the prayer for cross-examination is not bonafide, ordinarily the permission to cross-
examine when demanded must be granted. Cross-examining a person, who makes a statement either in court or by affirming before Oath Commissioner in order to adjudge its varac-ity, is a basic ingredient of principles of natural justice to which all judicial norms must conform. It rather requires special and weighty reasons to refuse the cross-examination to a person who wants to challenge the correctness of facts sworn in an affidavit."
10. While deciding the said case, this Court placed reliance upon its earlier judgment in [PRECEDENT], wherein the learned District Judge had refused to grant permission to cross-examine a deponent on an affidavit. Examining the scope of [SECTION] of the Code, this Court held that :- "Under [SECTION] [ACT], 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 was made for cross- examination of the deponents of the affidavits was not bonafide As the order has materially prejudiced the cause of the petitioner and has affected the decision of the application, the order under revision, if allowed to stand, would occasion a failure of justice."
11. The ratio of the aforesaid judgments comes to that not permitting a party to cross-examine the deponent of an affidavit, may, in a given case, materially prejudice the person against whom the affidavit has been filed and ordinarily, not permitting the cross-examination amounts to exercise of jurisdiction illegally or with material irregularity.
1[SECTION]. In Smt. [ENTITY] and Anr. v. Man Mohan and Ors., AIR 1996 Raj. [SECTION]9, this Court held that application for cross-examination may be rejected if it is vague and does not disclose reasons which can be said to be bonafide by giving cogent and convincing reasons. This Court found that the application under [SECTION] of the Code was not bonafide and had been filed to stall the proceedings in the suit and to cause a delay and had rightly been rejected by the trial Court.
[SECTION]. Similarly, in Abdul Nisar v. Smt. Saroj and Ors., 1999 WLC 767, RLW 1999([SECTION]) Raj. 74[SECTION], this Court, placing reliance upon the judgment in Smt. [ENTITY] (supra) reiterated that cross-examination of deponent of an affidavit should not be permitted when the application was. vague and was disclosing no bonafide reasons.
14. A Division Bench of the Allahabad High Court, in Khushi Ram Dedwal and Anr. v. Additional Judge, Small Causes Court/Prescribed Authority, Meerut and Ors., 1998 (1) RCJ 31[SECTION], considered the scope of application of [SECTION] of the Code in an application under the [ACT] and held that cross- examination of a deponent must be refused if found not necessary and would only hamper the expeditious disposal of the case. The Court held that:- "The principle that a party is to be permitted to cross- examine on the principle of natural justice cannot be accepted in every case. Oral examination in all cases is not contemplated. Even in disciplinary inquiries in exceptional cases oral evidence may not be insisted'upon as held in Hira Nath Mishra v. Principal, Rajendra Medical College, AIR 1973 SC 1[SECTION]60 and State of Haryana v. Rattar Singh, AIR 1977 SC 1[SECTION]1[SECTION]. If a party wants to cross- examine, he has to give the necessary facts in the application as to why the cross- examination is necessary. The Prescribed Authority will give the reasons either for allowing or refusing the cross-examination. The reasons disclosed in the order of the Prescribed Authority will show whether he acted fairly or not. Considering every aspect of the matter the authority under the provisions of U.P. Act No. [SECTION] of 197[SECTION] can permit the cross- examination of a deponent of an affidavit only when it is necessary in the case."
1[SECTION]. In Ganpat Singh and Anr. v. Ashok Kumar and Ors., [SECTION]000(1) WLC 499, RLW 1999(3) Raj. 1[SECTION][SECTION][SECTION], this Court again reiterated the law laid down in Smt. [ENTITY] and Ors. (supra) observing that:- " two conditions are necessary for grant of permission under [SECTION] [ACT]. The first is that the application should be bonafide which means that it should be supported by sufficient and cogent reasons and the second is that the Court should be satisfied that permitting the cross-examination of the deponent was necessary in the interest of justice. It is obvious that for the purpose coming to the conclusion whether it is necessary or not necessary to allow the permission of cross-examination the deponent of an affidavit, it is the court concerned and none else which has to arrive at an independent conclusion."
16. In Chhotu Khan v. Abdul Karim, AIR 1991 Raj. 119, 1991(1) RLW [SECTION][SECTION], this Court had considered the scope of provisions of [SECTION] and [SECTION] of the Code placing reliance upon large number of its earlier judgments including [ENTITY] v. Brij Mohan, 1970 RLW 74, and came to the conclusion that the said provisions makes it abundantly clear that the Court may order the attendance of deponent for cross-examination and the said provisions do not empower the Court to issue process to enforce the attendance of the deponent. The Court further held that if a party fails to produce the deponent of the affidavit filed by him for cross-examination, affidavit of the deponent failing to attend the Court must be ignored.
[SECTION]. In [ENTITY] (supra), this Court observed that :- "On the other hand, if the provision contained in [SECTION] [ACT] 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 number of cases the delay involved may defeat the object of the application These considerations lean in favour of giving the word 'may' its ordinary meaning in this rule, i.e. implying a discretion It is in the discretion of the Court to order the attendance of the deponents for their cross-examination on the affidavits filed by them."
[SECTION]. A Division Bench of this Court, in Ram Swaroop v. Bholu Ram, AIR 1991 Raj. [SECTION]6, considered the scope of application of [SECTION] while considering the application under [SECTION] and [SECTION] for grant of temporary injunction and held that :- "Apart from the principles of natural justice, having regard to the statutory provisions contained in [SECTION] and [SECTION] and [SECTION] [ACT] read with [SECTION], we are of the view that the Court possess power to call the deponent for cross- examination when an affidavit has been filed in support of an application under [SECTION] [ACT]."
19. While deciding the said case, this Court placed reliance upon large number of judgments, including Kanhaiya Lal v. Megh Raj, AIR 19[SECTION]4 Nag. [SECTION]60, wherein the view has been taken that expression "any application" in [SECTION] of the Code would include any application under the Code, since the Code does not define the word "application" nor does it make any distinction between one application and another. Similar view has been reiterated in Shiv Sahai v. Tika, AIR 194[SECTION] Oudh 3[SECTION]0, holding that :- "A perusal of this rule leaves no doubt that it is open to a Court on sufficient ground to allow proof of facts by means of affidavit, but if the production of the declarant of the affidavit is required in good faith for cross-examination by any party, the Court shall not use such affidavit in support of facts alleged therein without the production of the declarant. [SECTION] [ACT] puts the matter further beyond doubt. This rule is to the effect that 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."
[SECTION]0. In Pijush Kanti Guha v. Smt. Kinnori Mullick, AIR 1984 Cal. [SECTION]4, the Calcutta High Court considered the scope of application elaborately Under [SECTION] of the Code, while considering the application for temporary injunction, and held that there is a discretion left with the Court and no party can claim an absolute right to call the declarants of the affidavits for cross- examination, but it has to be determined on the facts of each case.
[SECTION]1. In [PRECEDENT], the Court held that while deciding interlocutory applications, where the affidavits form sheet-anchor and facts are being tried to be proved by affidavits, the other party may be given an opportunity to meet the contents thereof, otherwise the order would stand vitiated being passed in "non-conformance to the procedure established by law."
[SECTION][SECTION]. In Abdul Hameed Khan v. Mujeed-Ul-Hasan and Ors., AIR 197[SECTION] All 398, it was held that if contents of affidavits are contradicted, the Court may summon the deponents of the affidavits for cross- examination.
[SECTION]3. While examining a case under the provisions of the [ACT], the Hon'ble Supreme Court, in Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors., AIR 197[SECTION] SC 330, considered the application of [SECTION] and [SECTION] of the Code and observed that :- But the application of principles of natural justice does not imply that what is not evidence, can be acted upon. On the other hand, what it means is that no material can be relied upon to establish a contested fact which are not spoken to by the persons who are competent to speak about them and are subject to cross- examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal, the question that naturally arises is : is it a genuine document, what are its contents and are the statements contained therein true If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under [SECTION] of the Code and the [ACT], both of which incorporate the general principles."
[SECTION]4. In Needle I.I. Ltd. and Ors. v. N.I.N.I.H. Ltd. and Ors., AIR 1981 SC 1[SECTION]98, the Hon'ble Apex Court considered the case under the [ACT] and observed that" it is generally dissatisfactory 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." unless the parties have agreed to proceed with the matter on the basis of affidavits only.
[SECTION][SECTION]. In Ramesh Kumar v. Keshav Ran, AIR 199[SECTION] SC 700, the Hon'ble Supreme Court considered the scope of application of provisions of [SECTION] and [SECTION] in a Rent Control matter, observing that :- "The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provisions and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross- examination, may have recourse to that procedure."
1[SECTION]) In view of the above, the law on the issue can be summarised that Code does not define "application" nor makes any distinction between one application and another. Provisions of [SECTION] and [SECTION] of the Code are applicable while deciding any application under the Code. The party seeking permission of the Court to cross-examine the declarant must disclose the reasons why it it necessary to cross-examine the deponents and it should not merely be a pretext for delaying the proceedings. Tendency to procrastinate proceedings by any means has to be depricated, but at the same time, sufficiency of the grounds/reasons for seeking permission to cross-examine the deponents require to be examined. The Court is under an obligation to pass an appropriate order giving cogent reasons while allowing or rejecting the application for calling the deponent for cross-examination. Undoubtedly, such a course is not to be adopted in a routine manner. No straight- jacket formulae can be adopted. The Court has to examine the facts and circumstances of each case. Extraordinary method of proving or disproving the facts in a judicial proceeding by affidavits is permitted in interlocutory matters only to save time in the disposal of the proceedings in which Court does not decide the rights of the parties finally. It should always be remembered that Court has always its inherent powers to pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court and, thus, in a given case, if facts warrant calling the deponents of the affidavits, the Court may permit their cross- examination. In a particular fact- situation, the Court may find cross- examination necessary for satisfying itself about the truth of the averments in the affidavit, but the party must insist for examination of deponent and there must be bonafide reasons. Though the order to be passed may be interim in nature but may seriously prejudice the cause of the other party, therefore, Court has to pass order on such an application considering all pros and cons of the case.
16) From the above, coming back to the facts, no doubt at the cost of repetition the two suits are of the years [SECTION]00[SECTION] and [SECTION]007 for same property by same plaintiffs but for against two sets of defendants. The two applications by same parties to come on record filed as I.A. No.1[SECTION]9[SECTION] and 1[SECTION]90 of [SECTION]008 based on their getting title for respective extents out of the plaint schedule and their supporting documents also filed and received by Court. The two applicatiosn are pending for the past Six years. The plaintiff filed the applications in I.A. No.316 and 3[SECTION] of [SECTION]014 to summon the deponents of I.A. No.1[SECTION]9[SECTION] and 1[SECTION]90 of [SECTION]008 for cross-examination. There is no reason or explanation for filing the petitions [SECTION] years after said petitions filed, needless to say in earlier no such petitions filed and after hearing and on dismissal the matters went in revision as C.R.P Nos.4738 and 4481 of [SECTION]0[SECTION] and the dismissal orders were set aside and matter remitted back to the trial Court for disposal afrersh. It is not even the case in the affidavit of petitions I.A.No.316 and 3[SECTION] of [SECTION]014 to summon for cross- examination of deponents of I.A. No.1[SECTION]9[SECTION] and 1[SECTION]90 of [SECTION]008 that, the necessity arisen as a subsequent event in the petitions pending for more than [SECTION] years muchless after received documents with no objection in support of proposed parties to come on record. Though the lower Courts impugned dismissal orders in I.A. No.316 and 3[SECTION] of [SECTION]014 placed reliance on saying the same contemplated for third party deponents and not applicant- deponents, that was not the only conclusion but as one of the conclusions and even same is untenable, the other conclusions are that there are no valid reasons or grounds to summon deponent of the implead petitions for cross-examiantion also for the reason the documents filed by them on petition allowed to receive without objection raised and within the limited scope. Even coming to revision grounds sought to permit cross-examination by setting aside the dismissal orders, what is claimed is by impleadment sought, plaintiffs nature of suit and cause of action being changed. These are not the aspects to permit for cross-examination of deponents; but for to decide from any such submissions also the scope of the petitions as to proposed parties are necessary or even proper parties to the lis to come on record or not. Hence, there are no grounds to permit for cross-examination and no grounds to interfere with the impugned dismissal orders muchless to allow the revisions within the limited scope under [SECTION] of the [ACT] vide the expression of Apex Court in [PRECEDENT] and the subsequent expression in [PRECEDENT] (C.A.No.[SECTION]896 of [SECTION]010, dated [SECTION]3.07.[SECTION]010). Accordingly, the point No.1 for consideration is answered.
[SECTION]) Accordingly and in the result, both the revision petitions are dismissed with no costs and consequently closed any pending miscellaneous petitions and that neither the observations herein nor of the lower Court made in I.A. No.316 and 3[SECTION] of [SECTION]014 shall any way influence mind of trial Court in deciding I.A Nos.1[SECTION]9[SECTION] and 1[SECTION]90 of [SECTION]008 but for on its own merits. Dr. [ENTITY], J Date:19-11-[SECTION]014