1. Hon'ble the Chief Justice vide his order dated 10-4-89 has referred the following question to be decided by a larger Bench:

"Whether the provisions of Order 19, C.P.C. apply for deciding an application for grant of temporary injunction under Order 39, C.P.C.?"

2. The learned Chief Justice noticed conflict between a single Bench decision of this Court in Kusum Kumar Choudhary v. Supra Films (1971 RLW 282) and the single Bench decision of the Andhra Pradesh High Court in Ali Bin Aifan (AIR 1983 AP 114) in which reference was made to some other decisions and the learned Chief Justice also made reference to a Division Bench decision in Kanihyalal v. Meghraj (AIR 1954 Nag 260). In the Andhra Pradesh decision it was held that Order 19, C.P.C. is applicable for deciding the application under Order 39, C.P.C. and in the Nagpur Division Bench decision the expression "any application" in Order 19, Rule 2, C.P.C. was held to mean "any application" under the Code since the Code itself does not define the word "application" nor does it make any distinction between one application and another. In view of these decisions Hon'ble the Chief Justice was of the view that it would be proper to reconsider the correctness of the view taken in Kusum Kumar Choudhary v. Supra Films (supra) wherein the learned Judge took the view that provisions of Order 19, Rule 2, C.P.C. is not applicable to an application for grant of temporary injunction under Order 39, C.P.C.

3. We have heard Shri B. L. Pagaria, learned counsel for the petitioner. Nobody has put in appearance on behalf of the respondent.

4. In Kusum Kumar Choudhary v. Supra Films (supra) reliance was placed on Kanbi Mavji Khinji v. Kanbi Manjibhai Abjibhai (AIR 1968 Guj 198). The controversy in issue was whether in deciding an application under Order 39, Rule 1, C.P.C. the provisions of Order 19, Rules 1 and 2, C.P.C. can be pressed into service or not. In the Gujarat case referred to above the learned Judge reached a conclusion after considering the combined effect of Section 30 and Order 10, Rules 1 and 2 that only in cases where the Court exercises general power of ordering facts to be proved by affidavit either of its own motion or on the application of any party, that power is to be exercised subject to the conditions and limitations imposed under Order 19, Rules 1 and 2. The learned Judge further observed that there are some provisions in the schedule where the Court has been expressly permitted to decide certain matters on affidavits only and Order 39, Rule 1 was cited as one of the instances of such provisions. The learned Judge also noticed that there is no provision in Order 39, Rule 1 that the exercise of powers is subject to the conditions and limitations prescribed in Order 19, Rules 1 and 2 Chhangani, J. extracted the conclusion arrived at in the Gujarat case while deciding Kusum Kumar Choudhary v. Supra Films (supra). Contrary view was not cited before Chhangani, J. so Chhangani, J. accepted the view taken by the Gujarat High Court in the aforesaid decision. We have been referred to a direct decision of Andhra Pradesh High Court in Ali Bin Aif an (supra) and a Division Bench decision in Kanihyalal v. Meghraj (supra). In both these decisions the provisions contained in Order 19, Rules 1 and 2, Section 30, C.P.C. have been considered. It would be proper to refer to Order 19, Rules 1 and 2. Rules 1 and 2 read as under:--

1. Power to drder any point to be proved by affidavit-- Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the.

hearing on such conditions as the Court thinks reasonable : ' , Provided that where it appears to the Court that either party bona fide desires .the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

2. 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.

5. So far as the present matter is concerned, Rule 2 is materiel in view of the fact that before the trial Court reliance on the aforesaid-- Rajasthan High Court decision was made and cross-examination of the deponent on his affidavit was refused which was under challenge in revision before this Court. Rule 2 of Order 19 provides that evidence may be given by affidavit upon "any application". It further provides that the Court may at the instance of either party order for cross-examination of the deponents. It is true that under Order 39, Rule 1, the Court is competent to grant temporary injunction where in any suit the situations mentioned in Cls. (a), (b) and, (c) is provided by affidavit or otherwise. A party may prove the facts stated in Cls. (a), (b) and (c) by affidavit or otherwise in the application for grant of temporary injunction. Rule 2 envisages "any application" and as such this expression would include the application for grant of temporary injunction under Order 39, R.I, C.P.C.well. Rule 2ofO. 19 does not exclude the application made under Order 39, Rule 1 in which facts may be proved by affidavit.

6. In Kanhiyalal v. Meghraj (supra) Division Bench consisting of Sinha, C. J. and Hidayatullah, J. as they were then, interpreted the expression "any application" occurring in Order 19, Rule 2, C.P.C. It was observed that the distinction between substantive and interlocutory applications in defining the term "any application" in the second rule of Order 19 is without any foundation. The rule is applicable to any application which is made to the Court., irrespective of its nature. The Code itself does not define the word "application" nor does it make any distinction between one application and another. Other case law has been considered in the above Division Bench decision but entire agreement has been expressed with the following observations made in Shib Sahai v. Tika (AIR 1942 Oudh 350) (at page 351):

"A perusal of this rule leaves no doubt that it is open to a Court on sufficient grounds to allow proof of facts by means of affidavits, but if the production of the declarant of the affidavit is required in good faith for cross-examination by any party, the Court shall not use such affidavit in support of the facts alleged therein without the production of the declarant. Rule 2 of Order 19, Civil P.C., puts the matter further beyond doubt. This rule is to the effect that 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.

It was perfectly open to the lower Court to have ordered the production of the witnesses either of its own motion or at the instance of the defendant, for cross-examination in order to satisfy itself about the truth of the allegations in the affidavit. It does not appear from the record that the defendants counsel asked the Court to order the attendance of the plaintiff so as to give him an opportunity to cross-examine him, nor did the Court 'suo motu' think it necessary to order the plaintiffs attendance. There was no counter-affidavit filed by the defendant in answer to the allegations contained in the affidavit. Under the circumstances, it cannot be said that there was no evidence before the Court in support of the allegations contained in the plaintiff's application for restoration of the suit.

The view of law taken by the lower Court that the affidavit was no evidence of the facts alleged therein merely because there had been a verbal denial by the defendant without any attempt to controvert it by a counter-affidavit or without asking for the attendance of the plaintiff for the purpose of cross-examination, is not supported by the provisions of Order 19, Rules 1 and 2, Civil P.C., referred to above. I have no doubt whatever that had the attention of the learned Judge been drawn to the provisions of Order 19, Rules 1 and 2, he would not have expressed the opinion which he did, that the affidavit was no evidence of the facts alleged therein".

7. Nagpur case was a case relating to restoration of a small cause suit which was dismissed as the plaintiff had not paid the publication charges for substituted service nor any witness was present or summoned. The restoration application was submitted along with medical certificate and the suit was restored which was under challenge before the High Court in revision and it was contended before the Nagpur High Court that the teamed Small Cause Judge erred in using affidavit as evidence without examining the plaintiff.

8. AH Bin Aifan's case (supra) is a case where provisions of order 19 were held to be attracted to an application filed for temporary injunction under Order 39, C.P.C. It has been held that the Court has ample power to dispose of matters on affidavits and the Court. has also ample jurisdiction to summon the deponents of the affidavits for cross-examination either suo motu where the Court desires that they should be cross-examined or at the instance of a party if the Court comes to the conclusion that the circumstances warrant the summoning of the deponents for cross-examination. Learned counsel for the petitioner has also referred to a decision in B. E. Supply Co. Ltd. v. The Workmen (AIR 1972 SC 330). This matter was under Industrial Disputes Act (1947). In para 14 it was observed that if a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges the fact. This is both in accord with principles of natural justice as also according to the procedure under Order 19, C.P.C, and the Evidence Act both of which incorporate these general principles.

9. Apart from the principles of natural justice having regard to the statutory provisions contained in Section 30 and Order 19, Rules 1 and 2, C.P.C. read with Order 39, Rule 1 we are of the view that the Court possesses power to call the deponent for cross-examination when an affidavit has been filed in support of an application under O, 39, Rule 1, C.P.C. and we respectfully agree with the view taken in the aforesaid Nagpur and Andhra Pradesh decisions. With great respect we defer with the view taken in Kusum Kumar Choudhary v. Supra Films (supra).

10. Our answer to the question, therefore, is that the provisions of Order 19, C.P.C. apply for deciding an application for grant of temporary injunction under Order 39, C.P.C. The matter will now go before the learned single Judge for disposal.