Explain, with relevant provisions, the powers of court to call a party to the suit for cross-examination in respect of facts stated in the affidavit filed along with application for temporary injunction. Asked in Tamil Nadu Civil Judge 2018 Paper 1.
ORDER 39 RULE 1 OF CIVIL PROCEDURE CODE IS INDEPENDENT :
Order 39, Rule 1 of C.P.C. provides expressly that the Court is permitted to dispose of the interlocutory application of affidavits. 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 O. 39, R. 1, the question of summoning the deponent for the purpose of cross-examination at the instance of a party under O. 19, Rules 1 and 2 does not arise at all.
The power given to the Court under O. 39, R. 1 to decide the matters by affidavits is unfettered and is not subjected to the provisions of O. 19, Rules 1 and 2. In short, the provisions of O. 19, Rules 1 and 2 have no application at all to interlocutory matters governed by O. 39, R. 1.
The Gujarat High Court in Mavji Khimji v. Manjibhai, . Before the learned single Judge, it was contended that deponent who gave affidavit in support of the interlocutory application filed for the grant of temporary injunction, should be summoned for the purpose of cross-examination. Repelling this contention, J. M. Seth, J., held that when the court was given special power to decide certain interlocutory matters by affidavit, that power is not subject to limitations and conditions prescribed by the provisions of Rules 1 and 2 of O. 19. If really the legislature intended to place any conditions, and limitations in exercise of that special power also, the Legislature could have used those words in O, 39, R. 1 of the Code.
ORDER 19 RULE 1 & 2
1. 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.
2. 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. (2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.
Rule 1 contemplates affidavits in proof of facts and Rule 2 contemplates affidavits in support of or against applications.
Interlocutory applications are decided basing on affidavits of parties considering prima facie proof. For proof of a fact, affidavit is necessary as per order 19 Rule of CPC.
The Court has got a power to direct any party to prove a particular fact by 'affidavit'. In the interlocutory applications, rights of the parties will not be finally decided.
Generally in any interlocutory application filed for a specific relief under specific provision, petitioner is required to state his reasons for his prayer by way of an affidavit as per Order 19 CPC read with Rule 60 of Tamil Nadu CRP for proof of a particular fact or facts and the said affidavit can be received as an evidence as a proof of fact, which is necessary for adjudication.
When the court decides to record oral and documentary evidence at the stage of inquiry in interlocutory applications, instead of deciding the matter on affidavit, the court has got discretion in ordering cross examination of deponent and receiving documentary evidence.
In Tamil Nadu Civil Rules of Practice only Rules 53 to 60 of Chapter-V deal with interlocutory proceedings. Chapter - IV of Civil Rules of Practice deals with affidavits in Rule 34 to 48. Generally affidavit of deponent shall confine to the facts which are of his own knowledge. But in interlocutory applications, a belief of a particular fact can be made by way of a statement by stating the grounds of such belief. As per Rule 48 'every affidavit containing statements made on the information or belief of the deponent shall state the source or grounds of the information or belief
In Nadella Estates Pvt Ltd V Prema Ravindranath reported in 2015 (4) ALT 665: Extraordinary method of proving or disproving the facts in a judicial proceeding by affidavit 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.