1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.. 1184/2011 ANAND NARENDRARAO PADGILWAR ..VS. DEVISING ROOPSING PAWAR - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, | Court's or Judge's orders | appearances, Court's orders of directions | | and Registrar's orders | | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : SMT. VASANTI A. NAIK, J. DATE : MARCH 16, 2011. Heard Shri Deshpande, the learned counsel for the petitioner and learned counsel for the respondent. On hearing the learned counsel for the parties and on perusal of the impugned order dated 17.2.2011, it appears that the trial court was justified in rejecting an application filed by the defendant seeking direction to the plaintiff to keep the witnesses who had filed the affidavits in support of the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, to remain present for cross-examination. It is necessary to note that the respondent/plaintiff had filed affidavit of witnesses in support of the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure. The defendant/petitioner then moved the application before the court and argued that unless and until the witnesses who filed the affidavits are cross examined their affidavits cannot be read in evidence. The trial court rightly held, by exercising its discretion 2 in a judicious manner, that it was not necessary to cross examine the persons who had tendered their affidavits in support of the application filed by the plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure. The trial court was justified in holding that while considering the application under order 39 Rule 1 and 2 of the Code of Civil Procedure, it is necessary for a court to only consider a prima facie case and it was not necessary for the Court to call the witnesses for considering the prima facie case. Since the court was not deciding the main suit and was considering only the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure the court was justified in rejecting the application filed by the defendant for cross- examination of the persons who had filed the affidavits. The permission, if granted, would have resulted in delaying the hearing of the application for grant of temporary injunction. Though the learned counsel for the petitioner had relied on the judgment reported in AIR 1991 Rajasthan Page 56 to canvass that the provisions of Order 19 Rule 1 and 2 apply to the application for grant of temporary injunction, the learned counsel for the respondent has relied on the decision of the Allahabad High Court reported in AIR 2002 Allahabad page 198 wherein a contrary view is taken. Even assuming that the provisions of Order 19 Rule 1 and 2 are applicable at the stage of hearing of the matter under Order 39 Rule 1 and 2 of Code of Civil Procedure, still the power 3 given to the court to order attendance of a person for cross- examination is discretionary. In the instant case, it cannot be said that the discretion was wrongly exercised by the trial court. The order passed by the trial court does not suffer from any jurisdictional error. The writ petition is dismissed with no order as to costs. JUDGE SMP