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Kannammal Petitioner v. Bagyammal
Factual and Procedural Background
The respondent initiated a suit (O.S No. 158 of 1996) against the petitioner seeking a permanent injunction to restrain the petitioner from interfering with her possession. During the pendency of the suit, the respondent filed an interlocutory application (I.A No. 271 of 1996) requesting a temporary injunction. The petitioner opposed this petition. Subsequently, the petitioner filed another interlocutory application (I.A No. 224 of 1997) under Order 19, Rule 2 of the Code of Civil Procedure (C.P.C) seeking to compel the respondent to appear before the court for cross-examination regarding the affidavit filed in I.A No. 217 of 1996. The respondent resisted this application by filing a counter. The lower court dismissed the petition on 21.3.1997, prompting the petitioner to file the present revision petition challenging that order.
Legal Issues Presented
- Whether an application under Order 19, Rule 2, C.P.C can be maintained to compel the respondent to appear for cross-examination when the affidavit filed is only in support of a petition and not as evidence.
- Whether the affidavit filed by the respondent qualifies as evidence under Order 19, Rule 1, C.P.C, thereby triggering the applicability of Order 19, Rule 2, C.P.C for cross-examination.
Arguments of the Parties
Petitioner’s Arguments
- The petitioner contended that under Order 19, Rule 2, C.P.C, the respondent should be directed to appear for cross-examination regarding the affidavit filed.
- The petitioner relied on the precedent set in S.V Rao v. M. Appalaswamy (AIR 1978 AP 103), where the Andhra Pradesh High Court held that an application under Order 19, Rule 2, C.P.C is maintainable when the affidavit is filed as evidence to support a party’s case.
Respondent’s Arguments
- The respondent argued that the affidavit was filed only in support of the petition and not as evidence as contemplated under Order 19, Rule 2, C.P.C.
- Therefore, the petitioner’s application under Order 19, Rule 2, C.P.C was not maintainable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| S.V Rao v. M. Appalaswamy, AIR 1978 AP 103 | Order 19, Rule 2, C.P.C – Maintainability of application for cross-examination when affidavit is filed as evidence. | The court distinguished this precedent by noting that in the present case the affidavit was not filed as evidence but only in support of a petition; hence the precedent did not mandate allowing the petitioner’s application. |
Court's Reasoning and Analysis
The court analyzed the applicability of Order 19, Rule 2, C.P.C, which permits cross-examination of a party who has filed an affidavit as evidence under Order 19, Rule 1, C.P.C. It observed that the affidavit filed by the respondent was solely in support of the petition and did not constitute evidence as contemplated under the procedural provisions. The court distinguished the petitioner’s reliance on the S.V Rao case, clarifying that in that precedent the affidavit was filed as evidence, whereas here it was not. Consequently, the court held that the petitioner’s application to compel cross-examination was not maintainable and correctly dismissed by the lower court.
Holding and Implications
The revision petition is dismissed with no costs.
The direct effect of this decision is the affirmation of the lower court’s order rejecting the petitioner’s application under Order 19, Rule 2, C.P.C. The court’s ruling underscores that cross-examination under this provision is only permissible when the affidavit is filed as evidence, not merely in support of a petition. No new precedent was established by this decision.
1. The respondent filed a suit in O.S No. 158 of 96 against the petitioner seeking a prayer for permanent injunction restraining the petitioner from interfering with her possession. Pending the suit, the respondent filed I.A No. 271 of 1996 seeking a prayer for an order of temporary injunction. The petitioner filed a counter objecting the said petition. Pending proceedings the petitioner filed I.A No. 224 of 97 in I.A No. 271 of 96 under Order 19, Rule 2 C.P.C to direct the respondent herein to appear before the court so as to enable her to cross-examine the plaintiff with respect to the averments in the affidavit filed in I.A No. 217 of 1996. That was resisted by the respondent by filing a counter. The lower court in its order dated 21.3.97 dismissed the petition and aggrieved against the same the petitioner has filed the above revision.
2. The petitioner has filed the above application under Order 19, Rule 2, C.P.C, to direct the plaintiff to come to the court for the purpose of cross-examination of the defendant. The petition itself cannot be maintained, as Order 19, Rule 2, C.P.C cannot be invoked in this case in view of the fact that the affidavit is filed only in support of the petition and not as evidence as contemplated under Order 19, Rule 2, C.P.C The affidavit contemplated under Order 19, Rule 1 of the Code is for the purpose of proving any particular fact or facts or of any witness. Ordinarily a fact has to be proved by oral evidence, but the courts subject to the conditions laid down in Order 19, C.P.C may ask a particular fact to be proved by affidavit.
3. The learned counsel appearing for the petitioner relied upon the judgment reported in S.V Rao v. M. Appalaswamy, AIR 1978 AP 103. The learned Judge of the Andhra pradesh High Court has held that the lower court should not have refused to order the petition under Order 19, Rule 2, C.P.C filed by the defendant. In that case, the plaintiff filed a third party affidavit by way of evidence to support his case. So the court, applying the said provision viz., Order 19, Rule 2, C.P.C held that such a petition is maintainable. But in this case, the affidavit filed by the respondent is not by way of evidence; but only in support of the petition. So the said petition cannot be construed as it is filed by way of evidence. So the lower court is correct in rejecting the petition.
4. Hence I do not find any merits in the civil revision petition and accordingly it is dismissed. No costs.
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