Order XIX Rule 2 CPC - to direct the 1st respondent/1st defendant to appear before the court to cross-examine her to elicit the truth in the contents of her affidavit filed in I.A.No.3812 of 2015. = held that a party to the suit can not be summoned to present for cross- only third party affidavit persons can be summoned if there is no design for delay= in Shetty Chandra Shekar and others v. Neeti Ramulu and others (supra) dismissed the application filed by the petitioner on the ground that the deponents of third party affidavits filed in support of plaintiff or defendant can be called for cross-examination but not the affidavit filed by either the plaintiff or the defendant to the proceedings. - in the case of Smt. Sudha and another v. Manmohan and others , wherein it is held that the request for cross examination of the defendant cannot be allowed if such request could be to protract and delay the proceedings under the main suit. The Court below has rightly relied on the judgment in Shetty Chandra Shekers case and came to the conclusion that the application under Order XIX Rule 2 CPC is not maintainable in respect of the affidavits filed by parties to proceedings and it will apply to the affidavits filed by third parties.

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

C.R.P.No.2046 OF 2016  

03-06-2016

Pathange Mohan Krishna Rao   .Petitioner/Defendant no.4

Smt Navale Sreevani and others ..Respondents  

Counsel for the Petitioner:Sri K/Rasthangapani Reddy

Counsel for the Respondents:

<GEST

>HEAD NOTE:  

?Cases Referred:

1. 2013(2) ALT 784
2. 2015 (4) ALT 665
3. 2008 (2) ALT 463
4. 1983 (1) ALT 39=AIT 1983 AP 14
5. 2001 (6) SCC 356=AIR 2001 SC 2293  
6. AIR 1996 Raj 59

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

C.R.P.No.2046 OF 2016  

ORDER :

        This Civil Revision Petition is filed against order dated
14.03.2016 in I.A.No.206 of 2016 in I.A.No.3812 of 2015 in
O.S.No.88 of 2015, wherein the Court below dismissed the
application filed by the petitioner/4th defendant in the suit
under Order 19 Rule 2 of CPC to direct the 1st respondent/1st
defendant to appear before the court to cross-examine her to
elicit the truth in the contents of her affidavit filed in
I.A.No.3812 of 2015.
2.       For the sake of convenience, the parties hereinafter will be
referred to as arrayed in the interlocutory application.
        It is the case of the petitioner that he is the 4th defendant
in the main suit and defendants 1 and 3 in the main suit filed a
petition in I.A.No.3812 of 2015 praying the Court to direct the
defendants 5 to 7, who are tenants to pay rents to the 1st
defendant in respect of the petition schedule property or to
deposit the rents into the Court to withdraw the same by the 1st
defendant. In order to ascertain the truth, cross-examination of
1st defendant is very much necessary. Hence, the petition.
3.         The 1st respondent/plaintiff filed counter denying the
averments in the affidavit filed in support of the petition stating
that the petitioner is not having good terms with his parents and
sisters for the last four years and that he is not aware of the
health condition of the 2nd respondent i.e., 1st defendant in the
suit.  It is also stated that Order 19 Rule 2 is not applicable in
respect of Interlocutory Applications and examination of
deponent arises only in cases where third party affidavits are
filed.   It is also stated that the cross-examination of 2nd
respondent/1st defendant at this stage is not permissible and
that the 2nd respondent has got only share in the plaint schedule
properties along with other respondents.
4.       Heard learned counsel for the petitioner. None appeared
on behalf of the respondents.
5.       Learned counsel for the petitioner submits that the 2nd
respondent is not suffering with any heart disease, as such,
there is no need for depositing the rents into the Court and the
Court below should have allowed the application to cross-
examine the 2nd respondent/1st defendant, but erroneously
dismissed the same on the ground that Order 19 Rule 2 of CPC
has no application to the present case and it is only applicable
when third party affidavits are filed.  He would further contend
that cross-examination can be permitted in respect of the
affidavits filed by parties to proceedings also.  In support of his
contentions, he relied on the judgments reported in Gampa Sai
Ravi Kiran v. Bonda Rama Lakshmi and others , Nadella Estates Pvt.
Ltd. Hyderabad v. Prema Ravindranath and others , Shetty Chandra
Shekar and others v. Neeti Ramulu and others  and Ali Bin Aifan v.
State .
6.       The provision of law under which I.A.No.206 of 2016 is
filed is under Order XIX Rule 2 CPC, which reads as under:
        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.


          In Shetty Chandra Shekar and others v. Neeti Ramulu and others
(supra), His Lordship Honble Sri Justice N.V.Ramana (as he then
was) while dealing with the provision under Order XIX Rule 2 of
CPC held as follows:
        9. A bare perusal of the provisions of Order XIX, Rule 2, would
make it clear that the question of ordering attendance for cross-
examination of the deponent arises only in cases where the third
party affidavits are filed in support of the cases of the respective
parties. The language employed in the provision would not
indicate conferring of any power on the Court to call a person
swearing the affidavit filed in support of the petition, for cross-
examination. The affidavit filed in support of the petition shall not
be treated, as an affidavit filed by way of evidence, and in this
context, it would be relevant, if a reference is made to the
provisions of Section 3 of the Indian Evidence Act, 1872, which
defines "evidence" to mean and include all statements which the
Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry, such statements are
called oral evidence. In the present case, the respondents-
defendants filed the petition under Order XIX, Rule 2 C.P.C. to
direct the petitioner-plaintiff No. 1 to come to the Court for the
purpose of cross-examination. The question of applicability of the
provisions of Order XIX, Rule 2 C.P.C. would arise only in cases
where an affidavit was filed in support of the cases of the
respective parties i.e. either on behalf of the plaintiff or on behalf
of the defendant, by way of evidence, but certainly not an affidavit
filed in support of a petition. Since the affidavit filed in support of
a petition cannot be treated as evidence, the present petition filed
by the respondents-defendants under Order XIX, Rule 2 C.P.C.
seeking to summon the deponent of the affidavit filed in support
of the petition for temporary injunction, was not maintainable,
and more so when it is not the case of the respondents-
defendants that they intended to summon petitioner-plaintiff No.
1 because he had sworn to the affidavit by way of evidence to
support the case of the plaintiffs. The law is well settled that when
affidavits are filed in a proceeding under Order XXXIX, Rule 1
C.P.C. or any other proceedings, and in case the Court entertains
a doubt, with regard to the identity of the person or persons who
gave the affidavit, then it has the power and discretion to order
the attendance of the deponent of the affidavit, for cross-
examination so as to come to a just concision, to determine such
petition. In such situations, the order passed by the Court below
to summon the deponent for cross-examination cannot be faulted
and such orders, can neither be said to be illegal nor beyond the
competence of the Court.
      10. In the above view of the matter, it has to be held that the
present application filed by the respondents-defendants under
Order XIX Rule 2 C.P.C. is not maintainable, and the Court below
was not justified in ordering the present application holding that
the respondents-defendants counsel is entitled to cross-examine
petitioner-plaintiff No. 1 who swore to the affidavit filed in support
of the petition for grant of temporary injunction, and more so
when the present application, does not fall within the ambit and
scope of Order XIX Rule 2 C.P.C.
7.      In Gampa Sai Ravi Kiran v. Bonda Rama Lakshmi and others  
(supra), with due respect, though the learned Single Judge has
referred to the judgment of this Court in Shetty Chandra Shekar
and others v. Neeti Ramulu and others (supra), but without
considering the effect of the said judgment, allowed the
application for cross-examination of deponent stating that it is a
valuable right conferred on the parties. The learned Single Judge
has not considered the effect of the aforesaid judgment, which
was rendered after taking into account Section 3 of the Indian
Evidence Act, which defines evidence.
8.      In Nadella Estates Pvt. Ltd. Hyderabad v. Prema Ravindranath
and others (supra), with due respect,  the learned Single Judge,
though referred to the judgment of this Court in Shetty Chandra
Shekar and others v. Neeti Ramulu and others (supra), but has not
considered the effect of the same and also has not considered
the effect of Section 3 of Evidence Act.  However, on merits,
dismissed the applications filed under Order XIX Rule 2 CPC.  In
both the decisions, though reference is made to about the
judgment of this Court in Shetty Chandra Shekar and others v. Neeti
Ramulu and others (supra), but has not taken into account the
effect of Section 3 of the Indian Evidence Act and in Ali Bin
Aifans case (supra) also the learned Judge has not considered
Section 3 of the Evidence Act, as such, in my opinion, the
decisions rendered in Gampa Sai Ravi Kiran v. Bonda Rama Lakshmi  
and others (supra) and Nadella Estates Pvt. Ltd. Hyderabad v. Prema
Ravindranath and others (supra) and Ali Bin Aifan (supra) are per
incuriam,  as per the judgment of Honble Supreme Court in
Fuerst Day Lawson Ltd., v. Jindal Exports Limited .
9.      The Court below by relying on the judgment reported in
Shetty Chandra Shekar and others v. Neeti Ramulu and others (supra)
dismissed the application filed by the petitioner on the ground
that the deponents of third party affidavits filed in support of
plaintiff or defendant can be called for cross-examination but
not the affidavit filed by either the plaintiff or the defendant to
the proceedings.
        The Court below also relied on the judgment reported in
the case of Smt. Sudha and another v. Manmohan and others ,  
wherein it is held that the request for cross examination of the
defendant cannot be allowed if such request could be to protract
and delay the proceedings under the main suit.   The Court
below has rightly relied on the judgment in Shetty Chandra
Shekers case and came to the conclusion that the application
under Order XIX Rule 2 CPC is not maintainable in respect of
the affidavits filed by parties to proceedings and it will apply to
the affidavits filed by third parties.
        In view of above facts and circumstances, I do not see any
reason to interfere with the order of the Court below.
        Accordingly, this Civil Revision Petition is dismissed.
There shall be no order as to costs.  As a sequel thereto,
miscellaneous petitions, if any, pending in this CRP, shall stand
dismissed.
-------------------------------
A.RAJASHEKER REDDY, J    
03.06.2016.

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