1 S.B. CIVIL WRIT PETITION NO.6752/2007 Shanti Lal Surana. vs. Addl. District Judge (FT) No.4, Jodhpur and ors. Date : 22.10.2007 HON'BLE MR. PRAKASH TATIA, J. Mr.Om Mehta, for petitioner. - - - - - Heard learned counsel for the petitioner. The petitioner is aggrieved against the order dated 11.9.2007 by which the court below dismissed the petitioner's application under Order 19 Rule 2 CPC and the order dated 27.9.2007 by which the petitioner's review petition for review of the order dated 11.9.2007 was dismissed. According to learned counsel for the petitioner/plaintiff, the petitioner filed suit for partition and injunction on the ground that the suit property was belonging to his grandfather Shri Annaraj Surana. The defendants submitted written statement and took an absolutely false plea and that too to the extent of saying that 2 Shri Annaraj died in the year 1966. The petitioner thereafter produced certain documents which were issued by the Doctor in Assam and which was lying with the petitioner showing that the treatment of Shri Annaraj was done in the year 1975. The petitioner also produced the death certificate of Shri Annaraj to show that Shri Annaraj died on 12.4.1975. The petitioner in proceeding for grant of injunction under Order 39 Rules 1 and 2 CPC submitted an application for cross examination of the deponents/defendants because of the reason that according to the petitioner/plaintiff, the defendants gave absolutely false evidence in their affidavits. Learned counsel for the petitioner submitted that the trial court has not rejected the application on the ground that the application has been filed malafidely. Learned counsel for the petitioner relied upon the decision of this court delivered in SB Civil Revision Petition No.620/1992 (Anusuiya vs. Poona Ram) decided on 12.1.1996. In the said revision petition, this Court noticed the earlier decision of this Court delivered in the case of Bhanwarlal vs. Smt. Kamla Devi reported in 1981 RLW 464. In the said judgment, it has been held that as a matter of fact, unless there are some weighty 3 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. It is further held that 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. According to learned counsel for the petitioner, when there is a patent lie in the affidavit, then the petitioner should have been allowed by the court below to cross examine the deponents/defendants so as to bring truth on record. I considered the submissions of learned counsel for the petitioner and perused the facts of the case and the record which has been submitted by the petitioner along with the writ petition. According to the plaintiff/petitioner himself, the suit property was belonging to Annaraj though the sale deed is in the name of Smt. Bidami Devi, the daughter-in-law of deceased Annaraj but still it is the property of Annaraj. The respondents/ defendants submitted that the suit property was 4 purchased after 5 years of the death of Annaraj. This plea of defendants was denied by the plaintiff by filing rejoinder. The plaintiff also placed on record the documents referred above. The trial court dismissed the application on the ground that the trial court at the time of deciding injunction application is not required to finally decide the correctness, validity and legality of the documents placed on record by the defendants nor any final finding is required to be recorded on the documents produced by the plaintiff. The trial court also observed that the defendants tried to point out the contradictions in the case of the plaintiff. In the totality, the trial court found that no case is made out for cross examination of the defendants/deponents. Learned counsel for the petitioner submitted that looking to the grave false stand taken by the defendants and that too, looking to the close relations personal knowledge of defendant about the death of Annaraj, the court below should not have refused to cross examine the defendants. The facts of the case clearly reveal that there are two stands, one of the plaintiff and another by the defendants, and both are sticking upon their stands. The plaintiff in his 5 application filed under Order 19 Rule 2 CPC itself clearly stated that in view of the medical prescription produced by the plaintiff, the stand of the defendants is false. Therefore, the plaintiff can establish his case with the help of his documents but there appears no reason to allow the cross examination of the defendants on the documents produced by the defendants at this stage of case when court is not required to record final finding on any issue. Under Order 39 Rules 1 and 2 CPC, injunction applications are required to be decided on the basis of the affidavits as well as material available on the record which includes the documentary evidence. The courts are required to see, consider and weigh all the evidence which has been produced by both the parties in the form of affidavit or may be in the form of documents. So far as permission to cross examine the other party on the documents which have not been written by other party or cross examination on the documents of one party from other party is not scope under Order 19 in the proceedings under Order 39 Rules 1 and 2 CPC because of the simple reason that there cannot be a trial within trial of the suit to the extent of complete evidence on all issues or on very material issues, to the extent of proving the 6 documents of parties by cross examination. After amendment of CPC, even the entire suit is decided in this manner only i.e. by examination in chief by affidavit and cross examination on affidavit by other party. In fact, virtually, the plaintiff wants to say that in the light of documents produced by the plaintiff, the stand of the defendants is false and that is the scope in the trial of suit. Learned counsel for the petitioner vehemently submitted that since there are trustworthy documents available on record and the defendants are close relations, had full knowledge and stated wrong fact, then cross examination should have been permitted in the light of the decision referred above. In the judgment of Anusuiya (supra), the trial court allowed the cross examination of the deponent. The facts of the above case are very peculiar. In that case, the non-petitioner moved application for permitting the cross examination of the petitioner in respect of an affidavit that was filed by the petitioner for obtaining the police help in restraining the non-petitioner from disobeying the injunction passed by the court in favour of the petitioner. The non-petitioner who 7 also alleged that there is an interim order in his favour has alleged in his reply that it is not the non-petitioner but the petitioner who is disobeying the orders of the court by raising construction contrary to the direction of the court and police help was sought malafidely for the purposes of carrying out constructions against the orders of the court in the guise of police protection. After taking into consideration the allegations and counter allegations, the trial court allowed the application of the non- petitioner to cross examine the petitioner in respect of her affidavit and also permitted the petitioner to cross examine the non-petitioner in respect of non-petitioner's affidavit making allegation against the petitioner for disobedience. The cross examination on affidavit in the proceedings under Order 39 Rules 1 and 2 CPC can be granted looking to the facts of each case and in this case, as mentioned above, virtually the plaintiff wants to confront the documents and cross examine the defendants on the documents produced by the defendant and in fact not on the statement on oath given in affidavit due to any ambiguity or to get clarification on any statement. In view of the above, I do not find any 8 reason for granting permission to cross examine the deponents/defendants. Since the trial court has not passed any order on merits of any of the evidence – oral or documentary evidence, nor this Court has passed any order on the merits, therefore, the trial court may decide the injunction application expeditiously on the basis of evidence available on the record after due consideration of all evidence. In view of the above, I do not find any reason to interfere in the impugned order while exercising jurisdiction under Article 227 of the Constitution of India. Consequently, this writ petition having no force, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya