ORDER
S.N. Bhargava, J.
1. This revision petition has been directed against the order dated 4-5-89 passed by the Civil Judge, Jaipur City, Jaipur, allowing application of non-petitioner No. 1 for restoring possession of the disputed property.
2. Non-petitioner No. 1 Navratan Mal Jain filed a civil suit for permanent injunction stating that he had taken the disputed property on rent from the petitioner and non petitioner No. 2 Radhey Shyam since 9th July, 1967 and that the petitioner Radha Kishan had been recovering rent from the very beginning. The petitioner and non-petitioner No. 2 requested the non-petitioner No. 1 to vacate the premises within two days so that they could dispose of the property, failing which the possession will be taken forcibly and therefore, the present suit was filed for permanent injunction against the petitioner and non-petitioner No. 2, to restrain them from dispossessing him without due process of law.
3. Along with the suit, an application for temporary injunction was also filed. An ex parte injunction order was granted in the following terms: —
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4. Time was sought to file written statement also reply to the application for temporary injunction. The non-petitioner No. 1 filed an application under Section 151, C.P.C. for restoration of possession of the shop, which was registered as Misc. Case No. 84/88. He also lodged a report in the police on 12-12-1988 and further an application under Order 39, Rule 2A, C.P.C., which was registered as Case No. 85/88. According to the petitioner, the shop was never let out to the plaintiff non-petitioner No. 1 and only Nohra in which a Dal Mill was installed, was given on contract of Rs. 300/- per month, Lastly, the contract came to an end on 31-12-1972 and it was never extended nor possession was handed over but the plaintiff non-petitioner No. I did not handover possession of the Nohra but instead filed the suit out of which the present revision petition has arisen.
5. He has further submitted that the petitioner did business of fodder in shop and the non-petitioner No. 1 had nothing to do with the shop and the plaintiff was only licensee on the plot measuring 25′ x 30′ in which Dal Mill had been installed. Affidavits were filed by the parties in Misc. Case No. 84/88. The non-petitioner No. 1 submitted four additional affidavits on 20-1-89 which were also taken on record in spite of objection by the petitioner and he was permitted to file counter affidavits, if he so desired by 3-2-1989. The petitioner had also filed an application seeking permission to cross-examine the deponents whose affidavits had been filed but the learned trial Court rejected the application observing that the affidavits had been filed in support of the application and its reply but there was no specific order under Order 19, C.P.C. A revision petition had been filed against that order, which was registered as Civil Revision Petition No. 349/1989 by the petitioner but the same was withdrawn; on behalf of the petitioner an application was thereafter filed on 1-5-1989 that since there are disputed questions of fact and that the
affdavits filed by the parties have not been treated under Order 19, Rule 1, C.P.C. and no cross-examination had been permitted, wherein it was prayed that oral evidence should be recorded but the said application was also dismissed by the Court vide its order dated 1-5-89. This order was challenged in Civil Revision No. 349/89 which was withdrawn by the petitioner on 4-5-89. The trial Court vide its impugned order dated 4th May, 1989 directed the petitioner for handing over the possession of the shop to non-petitioner No. 1 and in the event of failure to do so, the non-petitioner No. 1 was entitled to take police help. It is against this order that the present revision petition has been filed.
6. Arguments were initially heard on 4-7-89 and the case was posted for dictation of order on 5-7-89 but the order could not be dictated. Meanwhile, an application was filed on behalf of non-petitioner No. 2 that he has not committed any-contempt nor was he directed by the Court to hand over the possession and therefore, he had been unnecessarily impleaded as a party to the revision petition,
7. Learned counsel for the non-petitioner No. 1 has filed as application enclosing therewith an order dated 16-8-89 confirming its earlier order dated 30-8-80. Learned counsel for the petitioner submitted that he has already filed an appeal against that ofer and the non-petitioner No. 1 has been served, and the matter is pending before the Addl. District Judge No. 2, Jaipur City. The petitioner has also moved an application for deleting the name of non-petitioner No. 2 from the array of parties in this revision petition.
8. Learned counsel for the petitioner has submitted that the trial Court has seriously erred in relying on the affidavits filed by the non-petitioner No. 1 because the affidavits are not included in the definition of evidence under Section 3 of the Evidence Act, and since the trial Court had itself held that no order was passed under Order 19, Rule 1, C.P.C. while rejecting application for cross-examination of the dependents of those affidavits the affidavits
have to be excluded and if the affidavits are excluded there is no evidence on record for the basis of the order of the trial Court and in this connection, reliance has been placed on Messrs. Shamsunder Rajkumar v. Bharat Oil Mills. Nagpur, AIR 1964 Bombay 38 and Smt. Sudha Devi v. M.P. Narayanan, AIR 1988 SC 1381.
9. He has further submitted that affidavits cannot be relied upon unless both the parties had agreed to get them treated as evidence and a specific order had been passed under Order 19, Rule 1, C.P.C. In this connection, reliance has been placed on Gooru Xarayana v. Vaikuntam Chinna Lakshmayya, AIR 1939 Madras 927 and Marneedi Satyam v. Masimukula Venkataswami, AIR 1949 Madras 689 and B.N. Munibasappa v. Guru-siddaraja Desikendra Swamigal, AIR 1959 Mysore 139.
10. He has further submitted that ordinarily, the facts in issue should be decided on the basis of oral evidence and it should be only in exceptional cases that the Court should pass an order under Order 19, Rule 1. C.P.C. and that too with the consent of the parties.
11. He has further drawn my attention to Order 18, Rule 13. C.P.C., wherein a provision has been made for recording evidence by affidavits in unappealable cases.
He has further drawn my attention to Parekh Brothers v. Kartick Chandra Sana, AIR 1968 Cal 532 wherein it has been held that an affidavit per se does not become evidence but it can become evidence only by consent of the parties or where it is specially authorised by a particular provision of law. He has further submitted that since there is no valid and legal evidence on record, the findings of the trial Court are without any evidence and before passing an order for restoration under Section 151, C.P.C. the Court should have come to the conclusion that the possession had been taken over by the petitioner in spite of the orders of the Court and for that the non-petitioner No. 1 had already filed an application under Order 39. Rule 2, C.P.C. which is
still pending. Unless the Court was satisfied regarding this, no restoration order could have been passed undtr Section 151. C.P.C.
12. On the other hand, learned counsel for the non-petitioner No. 1 has submitted that the petitioner had dispossessed the non-petitioner No. 1 in spite of interim orders of the Court, dated 30-8-86 and therefore, the trial Court was justified in ordering for restoration of possession. He has placed reliance on Magna v. Rustam, AIR 1963 Rajasthan 3 wherein this Court had held that though Order 39, Rule 2(3), C.P.C. (unamended) was exhaustive on the subject of imposing of penalty on the party guilty of disobedience, but it does not provide for relief to the party in whose favour the order of temporary injunction was passed. If in disobedience of the order of injunction such rights are invaded during the pendency of the suit, relief can only be granted to the aggrieved party by invoking the inherent power of the Court under Section 151, C.P.C. To the same effect are observations made in State of Bihar v. Usha Devi, AIR 1956 Patna 455, Rayapati Audemma v. Pothineni Narasimham, AIR 1971 Andh Pra 53 and Sujit Pal v. Prabir Kumar Sun, AIR 1986 Cal 220.
13. It has further been submitted that the Court can decide interlocutory applications on the basis of affidavits alone and the Court is not bound to summon the deponents for cross-examination at the instance of a party. In this connection, reliance has been placed on Sakalabhaktula Vykuma Rao v. Made Appalaswamy, AIR 1978 Andh Pra 103: Kanbi Mavji Khimji v. Kanbi Manjibhai Abjibhai. AIR 1968 Gujarat 198 and Ranjit Ghosh v. Hindustan Steel Ltd., AIR 1971 Cal 100. In this connection, he has further placed reliance on Kusum Kumar Chowdhary v. Supra Films. 1971 Raj LW 282 and Satish Chandra Maity v. Saila Bala Dassi, AIR 1978 Cal 499. He has further drawn my attention to Kalyan Sahai v. Rampertap. 1951 Raj LW 149, wherein it has been held that the High Court should not go into evidence in revision.
14. I have given my thoughtful consideration to the whole matter and have also gone
through the record of the case as well as the authorities cited at the bar. In the present case, it is not disputed that the non-petitioner No. 1 has already filed an application under Order 39. Rule 2A, C.P.C. complaining against the disobedience of the injunction order dated 30-8-86 and the same is still pending in the Court. It cannot be disputed that the powers under Order 39, Rule 2A, C.P.C. are only to punish a person for disobedience or breach of injunction and the party which has suffered cannot get any benefit out of the order passed under Order 39, Rule 2A, C.P.C. and the only remedy for him is to approach the Court under its inherent powers under Section 151, C.P.C. In the present case, the parties had filed affidavits in support of opposition of application under Section 151. C.P.C. and the petitioner had filed an application for cross-examining the deponents whose affidavits were filed on behalf of non-petitioner No. I but the trial Court did not allow this application and observed that since there was no order under Order 19, Rule 1, C.P.C.. the cross-examination was not permissible and that order has become final. Moreover, the application for recording oral evidence moved by the petitioner before deciding the application under Section 151. C.P.C. had also been dismissed by the trial Court and that order has also become final. In view of the order of the trial Court that there was no order under Order 39, Rule I. C.P.C. the affidavits filed by the parties without giving an opportunity of cross-examining the dependents. cannot be treated as evidence in the case, in view of Sections 1 and 3 of the Evidence Act, and in that event, there was no material on record worth the name before the trial Court to come to the conclusion that the petitioner has dispossessed the non-petitioner Xo, 1 in spite of injunction against him and unless the Court was satisfied on some evidence that the non-petitioner No. 1 had been dispossessed in spite of an injunction order passed by the trial Court, it could not have passed an order for restoration of possession.
15. In this view of the matter, this revision petition is allowed, the order of the trial Court dated 4-S-I989 is set aside and the trial
Court is directed to dispose of the application under Section 151, C.P.C. as expeditiously as possible, preferably within four months from today, after recording oral evidence led by the parties in accordance with law. These observations are only with regard to the shop because the petitioner has not disputed that the non-petitioner is in possession of the Hall or the plot of land where the Dal Mill has been installed. As such, the non-petitioner No, I can open the lock of the Nohra. and utilise the same for his purpose. If any obstruction is put by the petitioner with regard to the possession of Nohra, the non-petitioner No. 1 will be entitled to seek help of the police.
16. No order as to costs.