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Radha Kishan v. Navratanmal Jain
Structured Summary of the Opinion (Revision Petition arising from order dated 4-5-89)
Factual and Procedural Background
This revision petition challenges the order dated 4-5-89 of the Civil Judge, Jaipur City, which allowed non-petitioner No. 1's application for restoration of possession of a disputed shop.
Non-petitioner No. 1 (Navratan Mal Jain) had instituted a civil suit for permanent injunction, alleging he had taken the disputed property on rent from the petitioner and non-petitioner No. 2 (Radhey Shyam) since 9 July 1967, and that petitioner Radha Kishan had been recovering rent throughout. The suit sought to restrain the petitioner and non-petitioner No. 2 from dispossessing him without due process after they allegedly demanded vacation of the premises so they could dispose of it.
An application for temporary injunction was filed and an ex parte interim injunction order was granted (terms recorded in the record). Non-petitioner No. 1 filed an application under Section 151, C.P.C. for restoration of possession (Misc. Case No. 84/88), lodged a police report on 12-12-1988, and filed an application under Order 39, Rule 2A, C.P.C. (registered as Case No. 85/88).
The petitioner disputed the plaintiff's title to the shop, contending only a "Nohra" (with a Dal Mill) on the plot had been given on contract which ended on 31-12-1972 and was not extended. Affidavits were filed by the parties in Misc. Case No. 84/88; non-petitioner No. 1 filed additional affidavits on 20-1-89. The petitioner sought permission to cross-examine deponents of those affidavits; the trial Court rejected that application on the ground no order had been made under Order 19, Rule 1, C.P.C. Applications by the petitioner for oral evidence were also dismissed; those interlocutory orders became final or were otherwise not pressed to a successful result.
The trial Court by its impugned order dated 4-5-89 directed the petitioner to hand over possession of the shop to non-petitioner No. 1 or, if the petitioner failed, permitted non-petitioner No. 1 to take police assistance. This revision petition was filed against that order.
Legal Issues Presented
- Whether affidavits filed by parties in interlocutory proceedings can be treated as evidence when there is no order under Order 19, Rule 1, C.P.C. permitting them to be treated as evidence (i.e., whether such affidavits are admissible as evidence without consent or specific statutory authority).
- Whether a restoration order under Section 151, C.P.C. can be validly passed without the Court being satisfied on evidence that dispossession occurred in spite of an injunction order (i.e., whether oral evidence is required before restoration under Section 151 in such circumstances).
- What is the relationship between relief under Order 39, Rule 2A (which punishes breach of injunction) and relief obtainable under the Court's inherent powers under Section 151, C.P.C.; and whether Section 151 is the appropriate route for restoration of possession as a remedy for invasion of rights during the pendency of suit.
Arguments of the Parties
Petitioner's Arguments (challenging the trial Court order)
- The petitioner argued the shop was never let to non-petitioner No. 1; only the Nohra (with the Dal Mill) had been given on contract which ended on 31-12-1972 and was not extended.
- Affidavits filed by non-petitioner No. 1 were not admissible as evidence because affidavits are not included in the definition of "evidence" under Section 3 of the Evidence Act; there was no order under Order 19, Rule 1, C.P.C. permitting those affidavits to be treated as evidence, hence they must be excluded.
- Because the affidavits should be excluded, there was no material/evidence before the trial Court to justify a restoration order under Section 151, C.P.C.; oral evidence should ordinarily decide facts in issue and the exceptional use of affidavits requires consent or statutory authorization.
- Counsel relied on multiple authorities (as cited in the record) to support the submission that affidavits cannot be relied upon as evidence unless treated as such by consent or specific order under the Code or law.
Non-petitioner No. 1's Arguments (supporting the trial Court order)
- Non-petitioner No. 1 contended he had been dispossessed despite interim orders of the Court (including an injunction dated 30-8-86), and thus the trial Court was justified in ordering restoration of possession.
- Counsel for non-petitioner No. 1 relied on authorities (including Magna v. Rustam and other cases) establishing that when rights are invaded in disobedience of an injunction, the aggrieved party can invoke the inherent powers of the Court under Section 151, C.P.C. for relief; Order 39, Rule 2(3) (unamended) primarily punishes disobedience but does not itself provide the private-law relief of restoration of rights to the aggrieved party.
- It was further submitted that interlocutory applications can be decided on the basis of affidavits alone and that the Court is not bound to summon deponents for cross-examination at the instance of a party in all circumstances.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court (as reflected in the opinion) |
|---|---|---|
| Messrs. Shamsunder Rajkumar v. Bharat Oil Mills, Nagpur, AIR 1964 Bombay 38 | Cited to support the proposition that affidavits are not evidence unless treated as such by consent or specific order. | Cited by petitioner counsel; the Court considered authorities dealing with admissibility of affidavits and accepted the principle that affidavits without Order 19 treatment cannot be treated as evidence for deciding the restoration application. |
| Smt. Sudha Devi v. M.P. Narayanan, AIR 1988 SC 1381 | Cited in support of the contention that affidavits cannot be relied upon as evidence without treatment under Order 19 or consent. | Cited by petitioner counsel; the Court reviewed the submissions and reached a conclusion consonant with the principle that affidavits filed without cross-examination opportunity cannot be treated as evidence for the purposes of the Section 151 application. |
| Gooru Xarayana v. Vaikuntam Chinna Lakshmayya, AIR 1939 Madras 927 | Cited as authority for the proposition limiting the use of affidavits as evidence without proper procedures/consent. | Cited by petitioner counsel and considered among authorities on affidavits; the Court's reasoning accords with the position that affidavits lacking cross-examination opportunity do not constitute evidence for deciding the restoration application. |
| Marneedi Satyam v. Masimukula Venkataswami, AIR 1949 Madras 689 | Cited regarding the inadmissibility or limited effect of affidavits as evidence in the absence of appropriate procedural steps. | Cited by petitioner counsel; treated by the Court as part of the supporting authorities for excluding affidavits from evidence where no Order 19 treatment/cross-examination was permitted. |
| B.N. Munibasappa v. Guru-siddaraja Desikendra Swamigal, AIR 1959 Mysore 139 | Cited for the proposition on affidavits and treatment of evidence. | Cited by petitioner counsel and considered in the Court's review of authorities; the Court reached a result consistent with exclusion of the uncertified affidavits as evidence. |
| Parekh Brothers v. Kartick Chandra Sana, AIR 1968 Cal 532 | Authority for the proposition that an affidavit per se does not become evidence except by consent of parties or specific statutory authorization. | Explicitly referred to by the Court (para 13) as supporting the view that affidavits per se are not evidence; the Court applied that principle in concluding the affidavits on record could not be treated as evidence absent Order 19 treatment. |
| Magna v. Rustam, AIR 1963 Rajasthan 3 | Authority holding that where injunction rights are invaded, relief to the aggrieved party can be obtained by invoking inherent powers under Section 151, C.P.C., because Order 39, Rule 2(3) is exhaustive for punishment but does not provide private relief. | The Court relied on this principle to explain the relationship between Order 39 remedies and the inherent power under Section 151, C.P.C.; the opinion notes this view and applies it in analyzing the appropriate remedies available to the aggrieved party. |
| State of Bihar v. Usha Devi, AIR 1956 Patna 455 | Cited (with others) to support the proposition that Section 151, C.P.C. may provide relief to an aggrieved party whose rights have been invaded despite injunctions. | Cited by non-petitioner counsel and treated by the Court as part of the body of authorities affirming the availability of Section 151 relief; the Court accepted the general principle but held that evidence was required before ordering restoration. |
| Rayapati Audemma v. Pothineni Narasimham, AIR 1971 Andh Pra 53 | Used to support the proposition that inherent powers under Section 151 can be invoked for relief when injunctions are disobeyed. | Included among authorities relied on by non-petitioner counsel and acknowledged by the Court as consistent with the principle that Section 151 can be invoked for relief (subject to proof). |
| Sujit Pal v. Prabir Kumar Sun, AIR 1986 Cal 220 | Also cited for the same general proposition that Section 151 may be invoked where injunction rights are invaded. | Referenced by the Court as part of the supporting authorities that a party aggrieved by disobedience of injunction may seek relief under Section 151; Court applied the principle to explain the appropriate remedy but required evidence before granting restoration. |
| Sakalabhaktula Vykuma Rao v. Made Appalaswamy, AIR 1978 Andh Pra 103 | Cited to support the proposition that interlocutory applications can, in some circumstances, be decided on affidavits. | Cited by non-petitioner counsel; the Court noted the contention that interlocutory matters may sometimes be decided on affidavits but held that in the present case the affidavits could not be treated as evidence where no Order 19 treatment/cross-examination had been allowed. |
| Kanbi Mavji Khimji v. Kanbi Manjibhai Abjibhai, AIR 1968 Gujarat 198 | Cited in support of the proposition that courts may decide interlocutory matters on affidavits in appropriate cases. | Cited by non-petitioner counsel; Court recognized the existing authorities favouring affidavit-based decisions in interlocutory contexts but determined on the facts that the affidavits in this case could not be treated as evidence without cross-examination or Order 19 treatment. |
| Ranjit Ghosh v. Hindustan Steel Ltd., AIR 1971 Cal 100 | Cited as an authority supporting the proposition that affidavits may suffice for interlocutory decisions in certain circumstances. | Cited by non-petitioner counsel; the Court considered counsel's reliance but concluded that the procedural deficiency (no Order 19 order/cross-examination) prevented the affidavits from amounting to evidence here. |
| Kusum Kumar Chowdhary v. Supra Films, 1971 Raj LW 282 | Cited among authorities on the conduct of interlocutory proceedings and the treatment of affidavits. | Cited by non-petitioner counsel and noted by the Court while reviewing the authorities; the Court nonetheless required proper evidence before directing restoration. |
| Satish Chandra Maity v. Saila Bala Dassi, AIR 1978 Cal 499 | Cited in support of the proposition that affidavits can, in suitable circumstances, form the basis of interlocutory decisions. | Cited by non-petitioner counsel; Court acknowledged the line of authorities but, on the facts and procedural posture here, found the affidavits on record insufficient to justify the restoration order. |
| Kalyan Sahai v. Rampertap, 1951 Raj LW 149 | Cited for the proposition that the High Court should be cautious about re-assessing evidence in revision (i.e., the High Court should not go into evidence in revision). | Cited by non-petitioner counsel; the Court observed its limited role in revision but analyzed the procedural record and concluded that the trial Court had erred as a matter of law in treating the affidavits as sufficient evidence to order restoration without oral evidence. |
Court's Reasoning and Analysis
The Court conducted a focused review of the record and the authorities cited at the bar. The reasoning proceeded along these steps:
Structured Summary of the Opinion (Revision Petition arising from order dated 4-5-89)
Factual and Procedural Background
This revision petition challenges the order dated 4-5-89 of the Civil Judge, Jaipur City, which allowed non-petitioner No. 1's application for restoration of possession of a disputed shop.
Non-petitioner No. 1 (Navratan Mal Jain) had instituted a civil suit for permanent injunction, alleging he had taken the disputed property on rent from the petitioner and non-petitioner No. 2 (Radhey Shyam) since 9 July 1967, and that petitioner Radha Kishan had been recovering rent throughout. The suit sought to restrain the petitioner and non-petitioner No. 2 from dispossessing him without due process after they allegedly demanded vacation of the premises so they could dispose of it.
An application for temporary injunction was filed and an ex parte interim injunction order was granted (terms recorded in the record). Non-petitioner No. 1 filed an application under Section 151, C.P.C. for restoration of possession (Misc. Case No. 84/88), lodged a police report on 12-12-1988, and filed an application under Order 39, Rule 2A, C.P.C. (registered as Case No. 85/88).
The petitioner disputed the plaintiff's title to the shop, contending only a "Nohra" (with a Dal Mill) on the plot had been given on contract which ended on 31-12-1972 and was not extended. Affidavits were filed by the parties in Misc. Case No. 84/88; non-petitioner No. 1 filed additional affidavits on 20-1-89. The petitioner sought permission to cross-examine deponents of those affidavits; the trial Court rejected that application on the ground no order had been made under Order 19, Rule 1, C.P.C. Applications by the petitioner for oral evidence were also dismissed; those interlocutory orders became final or were otherwise not pressed to a successful result.
The trial Court by its impugned order dated 4-5-89 directed the petitioner to hand over possession of the shop to non-petitioner No. 1 or, if the petitioner failed, permitted non-petitioner No. 1 to take police assistance. This revision petition was filed against that order.
Legal Issues Presented
- Whether affidavits filed by parties in interlocutory proceedings can be treated as evidence when there is no order under Order 19, Rule 1, C.P.C. permitting them to be treated as evidence (i.e., whether such affidavits are admissible as evidence without consent or specific statutory authority).
- Whether a restoration order under Section 151, C.P.C. can be validly passed without the Court being satisfied on evidence that dispossession occurred in spite of an injunction order (i.e., whether oral evidence is required before restoration under Section 151 in such circumstances).
- What is the relationship between relief under Order 39, Rule 2A (which punishes breach of injunction) and relief obtainable under the Court's inherent powers under Section 151, C.P.C.; and whether Section 151 is the appropriate route for restoration of possession as a remedy for invasion of rights during the pendency of suit.
Arguments of the Parties
Petitioner's Arguments (challenging the trial Court order)
- The petitioner argued the shop was never let to non-petitioner No. 1; only the Nohra (with the Dal Mill) had been given on contract which ended on 31-12-1972 and was not extended.
- Affidavits filed by non-petitioner No. 1 were not admissible as evidence because affidavits are not included in the definition of "evidence" under Section 3 of the Evidence Act; there was no order under Order 19, Rule 1, C.P.C. permitting those affidavits to be treated as evidence, hence they must be excluded.
- Because the affidavits should be excluded, there was no material/evidence before the trial Court to justify a restoration order under Section 151, C.P.C.; oral evidence should ordinarily decide facts in issue and the exceptional use of affidavits requires consent or statutory authorization.
- Counsel relied on multiple authorities (as cited in the record) to support the submission that affidavits cannot be relied upon as evidence unless treated as such by consent or specific order under the Code or law.
Non-petitioner No. 1's Arguments (supporting the trial Court order)
- Non-petitioner No. 1 contended he had been dispossessed despite interim orders of the Court (including an injunction dated 30-8-86), and thus the trial Court was justified in ordering restoration of possession.
- Counsel for non-petitioner No. 1 relied on authorities (including Magna v. Rustam and other cases) establishing that when rights are invaded in disobedience of an injunction, the aggrieved party can invoke the inherent powers of the Court under Section 151, C.P.C. for relief; Order 39, Rule 2(3) (unamended) primarily punishes disobedience but does not itself provide the private-law relief of restoration of rights to the aggrieved party.
- It was further submitted that interlocutory applications can be decided on the basis of affidavits alone and that the Court is not bound to summon deponents for cross-examination at the instance of a party in all circumstances.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court (as reflected in the opinion) |
|---|---|---|
| Messrs. Shamsunder Rajkumar v. Bharat Oil Mills, Nagpur, AIR 1964 Bombay 38 | Cited to support the proposition that affidavits are not evidence unless treated as such by consent or specific order. | Cited by petitioner counsel; the Court considered authorities dealing with admissibility of affidavits and accepted the principle that affidavits without Order 19 treatment cannot be treated as evidence for deciding the restoration application. |
| Smt. Sudha Devi v. M.P. Narayanan, AIR 1988 SC 1381 | Cited in support of the contention that affidavits cannot be relied upon as evidence without treatment under Order 19 or consent. | Cited by petitioner counsel; the Court reviewed the submissions and reached a conclusion consonant with the principle that affidavits without cross-examination opportunity cannot be treated as evidence for the purposes of the Section 151 application. |
| Gooru Xarayana v. Vaikuntam Chinna Lakshmayya, AIR 1939 Madras 927 | Cited as authority for the proposition limiting the use of affidavits as evidence without proper procedures/consent. | Cited by petitioner counsel and considered among authorities on affidavits; the Court's reasoning accords with the position that affidavits lacking cross-examination opportunity do not constitute evidence for deciding the restoration application. |
| Marneedi Satyam v. Masimukula Venkataswami, AIR 1949 Madras 689 | Cited regarding the inadmissibility or limited effect of affidavits as evidence in the absence of appropriate procedural steps. | Cited by petitioner counsel; treated by the Court as part of the supporting authorities for excluding affidavits from evidence where no Order 19 treatment/cross-examination was permitted. |
| B.N. Munibasappa v. Guru-siddaraja Desikendra Swamigal, AIR 1959 Mysore 139 | Cited for the proposition on affidavits and treatment of evidence. | Cited by petitioner counsel and considered in the Court's review of authorities; the Court reached a result consistent with exclusion of the uncertified affidavits as evidence. |
| Parekh Brothers v. Kartick Chandra Sana, AIR 1968 Cal 532 | Authority for the proposition that an affidavit per se does not become evidence except by consent of parties or specific statutory authorization. | Explicitly referred to by the Court (para 13) as supporting the view that affidavits per se are not evidence; the Court applied that principle in concluding the affidavits on record could not be treated as evidence absent Order 19 treatment. |
| Magna v. Rustam, AIR 1963 Rajasthan 3 | Authority holding that where injunction rights are invaded, relief to the aggrieved party can be obtained by invoking inherent powers under Section 151, C.P.C., because Order 39, Rule 2(3) is exhaustive for punishment but does not provide private relief. | The Court relied on this principle to explain the relationship between Order 39 remedies and the inherent power under Section 151, C.P.C.; the opinion notes this view and applies it in analyzing the appropriate remedies available to the aggrieved party. |
| State of Bihar v. Usha Devi, AIR 1956 Patna 455 | Cited (with others) to support the proposition that Section 151, C.P.C. may provide relief to an aggrieved party whose rights have been invaded despite injunctions. | Cited by non-petitioner counsel and treated by the Court as part of the body of authorities affirming the availability of Section 151 relief; the Court accepted the general principle but held that evidence was required before ordering restoration. |
| Rayapati Audemma v. Pothineni Narasimham, AIR 1971 Andh Pra 53 | Used to support the proposition that inherent powers under Section 151 can be invoked for relief when injunctions are disobeyed. | Included among authorities relied on by non-petitioner counsel and acknowledged by the Court as consistent with the principle that Section 151 can be invoked for relief (subject to proof). |
| Sujit Pal v. Prabir Kumar Sun, AIR 1986 Cal 220 | Also cited for the same general proposition that Section 151 may be invoked where injunction rights are invaded. | Referenced by the Court as part of the supporting authorities that a party aggrieved by disobedience of injunction may seek relief under Section 151; Court applied the principle to explain the appropriate remedy but required evidence before granting restoration. |
| Sakalabhaktula Vykuma Rao v. Made Appalaswamy, AIR 1978 Andh Pra 103 | Cited to support the proposition that interlocutory applications can, in some circumstances, be decided on affidavits. | Cited by non-petitioner counsel; the Court noted the contention that interlocutory matters may sometimes be decided on affidavits but held that in the present case the affidavits could not be treated as evidence where no Order 19 treatment/cross-examination had been allowed. |
| Kanbi Mavji Khimji v. Kanbi Manjibhai Abjibhai, AIR 1968 Gujarat 198 | Cited in support of the proposition that courts may decide interlocutory matters on affidavits in appropriate cases. | Cited by non-petitioner counsel; Court recognized the existing authorities favouring affidavit-based decisions in interlocutory contexts but determined on the facts that the affidavits in this case could not be treated as evidence without cross-examination or Order 19 treatment. |
| Ranjit Ghosh v. Hindustan Steel Ltd., AIR 1971 Cal 100 | Cited as an authority supporting the proposition that affidavits may suffice for interlocutory decisions in certain circumstances. | Cited by non-petitioner counsel; the Court considered counsel's reliance but concluded that the procedural deficiency (no Order 19 order/cross-examination) prevented the affidavits from amounting to evidence here. |
| Kusum Kumar Chowdhary v. Supra Films, 1971 Raj LW 282 | Cited among authorities on the conduct of interlocutory proceedings and the treatment of affidavits. | Cited by non-petitioner counsel and noted by the Court while reviewing the authorities; the Court nonetheless required proper evidence before directing restoration. |
| Satish Chandra Maity v. Saila Bala Dassi, AIR 1978 Cal 499 | Cited in support of the proposition that affidavits can, in suitable circumstances, form the basis of interlocutory decisions. | Cited by non-petitioner counsel; Court acknowledged the line of authorities but, on the facts and procedural posture here, found the affidavits on record insufficient to justify the restoration order. |
| Kalyan Sahai v. Rampertap, 1951 Raj LW 149 | Cited for the proposition that the High Court should be cautious about re-assessing evidence in revision (i.e., the High Court should not go into evidence in revision). | Cited by non-petitioner counsel; the Court observed its limited role in revision but analyzed the procedural record and concluded that the trial Court had erred as a matter of law in treating the affidavits as sufficient evidence to order restoration without oral evidence. |
Court's Reasoning and Analysis
The Court's analysis proceeded in a sequential and principle-based manner:
- The Court noted the procedural posture: an Order 39, Rule 2A complaint (for breach of injunction) was pending, and the petitioner had contested possession claims. The Court recognized the limited function of Order 39, Rule 2A — to punish disobedience — and that the aggrieved party's private remedy for invasion of rights during pendency is available under the Court's inherent power in Section 151, C.P.C.
- The Court examined the manner in which the trial Court had reached its restoration order. It observed that the trial Court had treated affidavits on record as constituting the material on which restoration was ordered, while rejecting the petitioner's application to cross-examine the deponents on the ground that no order had been passed under Order 19, Rule 1, C.P.C.
- Applying statutory principles (Sections 1 and 3 of the Evidence Act) and the settled law that an affidavit does not per se amount to evidence unless either the parties consent to treat it as evidence or a specific provision/ order under the procedural law permits it (as illustrated in the authorities cited, e.g., Parekh Brothers), the Court held that affidavits filed without giving an opportunity for cross-examination could not be treated as evidence in this case.
- Given that the trial Court had concluded there was no Order 19 direction and had not permitted cross-examination, and that the petitioner’s application for oral evidence was dismissed (orders now final), the Court found that there was no material on record "worth the name" upon which the trial Court could be satisfied that dispossession had occurred in spite of the injunction order.
- Because the Court could not be satisfied on evidence that dispossession had taken place despite the injunction, it concluded the trial Court erred in directing restoration under Section 151 without recording oral evidence or otherwise being satisfied on admissible material.
- The Court balanced the authorities: while recognizing precedent that Section 151 may be invoked to grant relief where injunctions have been disobeyed (Magna v. Rustam and related authorities), it emphasized that such relief must be grounded on admissible evidence. Similarly, although interlocutory matters are sometimes decided on affidavits, that principle does not assist where the procedural prerequisites for treating affidavits as evidence were not satisfied.
Holding and Implications
Holding: The revision petition is allowed; the order of the trial Court dated 4-5-1989 is set aside.
The Court directed that the trial Court should dispose of the application under Section 151, C.P.C. as expeditiously as possible, preferably within four months from the date of the order, after recording oral evidence led by the parties in accordance with law.
The Court's order included specific observations concerning the Nohra and Dal Mill: it was not disputed that non-petitioner No. 1 was in possession of the Hall or the plot where the Dal Mill was installed; accordingly, non-petitioner No. 1 could open the lock of the Nohra and utilize it, and if the petitioner obstructed possession of the Nohra the non-petitioner would be entitled to seek police help. The Court made no order as to costs.
Implications: The direct effect is that the trial Court's restoration order of 4-5-89 is vacated and the trial Court must re-adjudicate the Section 151 application after recording oral evidence. The opinion does not announce any new legal precedent beyond application of settled principles regarding (a) the limited remedial role of Order 39, Rule 2A and the availability of Section 151 as inherent remedy, and (b) the conditions under which affidavits may be treated as evidence; it confines its relief to correcting the trial Court's procedural and legal error in this specific case.
Disposition: The impugned order is set aside; matter remitted for fresh disposal of Section 151 application with oral evidence to be recorded within four months.
No order as to costs.
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: --
प्रतिवादी गण को जारिये अस्थाई निषेआज्ञा आगामी पेशी दिनांक 1-9-89 तक पाबंन्द किया जाता है कि विसादग्रस्तसम्पत्ती की स्थिति को यथावत बनाये रखे ।
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.
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