ORDER
Shacheendra Dwivedi, J.
1. This revision petition has been preferred by the defendants, aggrieved by the order of refusal to the cross-examination of
the respondent-plaintiff No. 1, on the affidavit filed by him in support of his application under p. 39, Rules 1 and 2 of the Code of Civil Procedure (for short “the Code”).
2. The plaintiffs have filed a suit for partition of the immovable property of undivided Hindu Family, wherein an application under Order 39, Rules 1 and 2 was also filed, restraining the defendants from alienating the family properties.
3. The defendants-prrtitioners filed an application under Order 19, Rules 1 and 2 C.P.C., submitting therein that the cross-examination of deponent was necessary, as an affidavit was filed by the plaintiff-respondent, No. 1 Khushatchand, in the ceiling proceedings, wherein he stated that he is the sole owner of the land in village Perkhedi, though that land is also included in the suit properties.
4. The learned trial Court rejected the prayer of the defendant-petitioners on the ground that the application of the defendant-petitioner under Order 19. Rules 1 and 2 of the Code does not disclose any such facts which may not be clear from the affidavit or any such point on which the defendant-petitioners require plaintiff-respondent No. 1 for cross-examination. The learned trial Court further found that the facts reasons which are disclosed by the defendants in the application can be brought on record through oral or documentary evidence.
5. The question for consideration, therefore, is, whether it is mandatory before considering the affidavits filed on record that an opportunity to the party challenging the affidavit be given for cross-examining the deponent or it is within the discretionary power of the Court to permit or refuse such cross-examination, depending on the facts of each case?
6. Both the parties have cited number of authorities and mentioning all of them is not necessary. In Guttilal v. Madrasi Chhakkar Bidi Factory, 1960 JLJ SN 47, it was expressed that :–
“In affidavit on interlocutory application there is no obligation on the court to order
cross-examination under Order 19, Rule 2 of the Civil P.C. and usually does not allow as the delay involved in most cases defeats the object of the interlocutory application.”
Following the view G.G. Sohani, J. (as he then was) observed in 1979 (1) MPWN 118 Krishnadas Lokendra Kumar (Firm) v. Ramchandra that it is for the trial Court to decide whether in the circumstances of a given case it should order attendance of the deponent for cross-examination. In Mavji Khimji v. K. Manjibhai, AIR 1968 Guj 198, the view taken was that the Court has been expressly permitted by the legislature to decide applications under Order 39, Rrule 1 C.P.C. on affidavits and if the Court on affidavit finds that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit on being sold or is being wrongfully sold the Court is entitled to grant such ad interim injunction as it thinks fit and cither party therefore cannot alley any claim or urge that it has got a right to cross-examine the deponent,
7. This Court in Division Bench decision in Mithailal Gupta v. Inland Auto Finance (AIR 1968 MP 33) has taken the view that Order 39, Rule 2 C.P.C. enables a party to give evidence by affidavit on an interlocutory application. If an affidavit differs from deposition in the latter, the opposite party has always an opportunity to cross-examine the deponent when affidavit is taken ex parte, where the adverse party desires production of the deponent for cross-examination, the Court should ordinarily order attendance of the deponent for cross-examination.
8. The opportunity of cross-examination to be granted or refused is in the discretion of the Court and if from the conduct and circumstances of the parties, it appears to the Court that the opportunity for cross-examination is being sought for delaying the decision and for protracting the proceedings, the Court would decline to permit the cross-examination.
9. In the facts and circumstances of the given case, since the petitioner-defendants have alleged that the statement of deponent
Khushanchand in his affidavit filed in the suit, is contradictory to the version given by him in his affidavit filed in the ceiling proceedings, the petitioners demand of opportunity of cross-examination of the deponent could not be said to be unjustified and if the trial court felt that allowing cross-examination may result in delaying the proceedings, the learned trial Court in such circumstances could put a rider and pass the conditional order fixing a particular date on which cross-examination, only on the limited point could be completed and on failure of defendant, could close the right of cross-examination.
10. This revision is, therefore, allowed and the parties are directed to appear in the trial Court on 22-10-1991 and respondent No. 1 plaintiff shall remain present on that date for his cross-examination by defendant, only on the limited issue of controversy and cross-examination shall be concluded on that date itself. This would be the sufficient notice to the parties and no further notice would be required. Considering the status of the parties, no order as to costs.
