IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.10.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.3211 of 2008 and M.P.No.1 of 2008 1.Ganesan 2.Murugesan 3.G.Sankar ... Petitioners Vs. 1.Palanisamy 2.P.Shanmugam 3.S.P.Jayamurugan 4.M.P.Mani 5.M.P.Jagadeesan ... Respondents Prayer: Petition filed under Article 227 of the Constitution of India against the Fair and Decretal order dated 05.08.2008 made in Unnumbered I.A.No.--- of 2008 in I.A.No.1023 of 2007 in O.S.No.331 of 2007 on the file of the District Munsif Court, Sankari. For Petitioners : Mr.N.Manokaran ORDER
The civil revision petitioners/defendants 6 to 8 have filed the present revision as against the order passed in unnumbered I.A.No.— of 2008 in I.A.No.1023 of 2007 in O.S.No.331 of 2007 on the file of District Munsif, Sankari dated 05.08.2008 in rejecting the same as not maintainable.
2.The prayer of the revision petitioners/defendants 6 to 8 in the said unnumbered application is to the effect that they desire to cross examine the respondents/plaintiffs in regard to the documents filed by them in I.A.No.1023 of 2007. It appears that in I.A.No.1023 of 2007 filed by the respondents/plaintiffs under Order 39 Rule 1 of Civil Procedure Code, nearly 7 documents have been marked on their side. Only at that stage, the unnumbered application I.A.No.— of 2008 has been filed by the defendants praying for permission of the Court to cross examine the respondents /petitioners/plaintiffs.
3.The trial Court, by placing reliance on the decision of this Court in Kannammal V. Bagyammal 1998 (I) CTC 280 to the effect that ‘affidavit filed in support of petition for interim injunction does not attract Or.19 R.2 of Civil Procedure Code and such affidavit was not filed as evidence and therefore, the petition for cross examination of deponent of affidavit is not maintainable,’ has dismissed the said application.
4.The learned counsel for the petitioners urges before this Court that order of the trial Court dated 05.08.2008 in rejecting the unnumbered I.A.No.— of 2008 is against law since the documents filed by the respondents/plaintiffs required definite cross examination and further that the trial Court has misconstrued the scope of Or.19 R.2 of Civil Procedure Code and therefore, prays for allowing the revision.
5.It is to be borne in mind that the ingredients of Or.19 R.2 of Civil Procedure Code apply for deciding an application for grant of temporary injunction under Or.39 of R.1 of Civil Procedure Code, besides the principles of natural justice having regard to the statutory provisions adumbrated in Section 30 and Or.19 R.1 and 2 of Civil Procedure Code read with Or.39 R.1. It is quite clear that a Court of law possesses power to call the deponent of an affidavit for cross examination, when an affidavit has been filed in support of an application under Or.39 R.1 of Civil Procedure Code. As a matter of fact, Or.19 R.2 enjoins “any application” and as such this expression will include within its ambit the application for grant of temporary injunction under Or.39 R.1 of Civil Procedure Code as well. In fact, R.2 of Or.19 of Civil Procedure Code does not exclude the application made under Or.39 R.1 in which facts may be proved by affidavit.’ Therefore, the power of the Court to call the deponent for cross examination with an affidavit filed in support of application Or.39 R.1 of Civil Procedure Code is untrammelled and viewed in this perspective, this Court allows the civil revision petition and set aside the order of the trial Court in unnumbered I.A.No.— of 2008 rejecting the same as not maintainable, since the view taken by it, is per se not correct in the eye of law.
6.In fine, the Civil Revision Petition is allowed. Consequently, the order passed in unnumbered I.A.No.— of 2008 dated 05.08.2008 is set aside for the reasons assigned by this Court in this revision. Further, the trial Court is directed to number the unnumbered I.A. and to take the same on its file and issue notice to the other side and after receipt of counter is to dispose of the merits in accordance with law and in the manner known to law. Having regard to the facts and circumstances of the case, there shall be no order as to costs. Connected miscellaneous petition is closed.
sgl
To
The District Munsif,
Sankari
[ PRV / 15944 ]