1. The instant revision has been filed against the impugned, order dated 22.9.2001, by which the application of the petitioner under Order 10 Rule 2 read with Order 19 Rule 2 of the Code of Civil Procedure, 1908 (for short, "the Code") has been rejected.
2. The facts and circumstances giving rise to this case are that non-petitioner/plaintiff filed a suit against the petitioner-defendant for fixing the standard rent of the suit premises with the averments that petitioner-defendant is his tenant on monthly rent of Rs. 607- in a shop of 400 square feet area. An application under section 7 of the rajasthan premises (control of rent & eviction) act, 1950 (hereinafter called "the act, 1950") for fixing the provisional rent was also filed and for that purpose, the non-petitioner/plaintiff produced some affidavits. Petitioner filed the aforesaid application for permission of cross-examining the deponents thereof, which has been rejected vide impugned order on-the ground that such proceedings are summary in nature and cross-examination cannot be permitted. Hence this revision.
3. Mr. J.R. Patel, learned counsel for the petitioner, has submitted that as the suit may be decided at a very belated stage and the provisional rent fixed by the Court may be unreasonable, the rent so fixed may prejudice the case of petitioner, therefore, the application should not have been dismissed and petitioner ought to have been accorded the permission to cross- examine the deponent of the affidavits and, thus, the order impugned is liable to be set-aside.
4. On the contrary, Mr. Kalla, learned counsel for respondent, has opposed the application on the ground that the proceedings to determine the provisional rent are summary in nature, therefore, the application has been rightly rejected as provisions of order 19 are not attracted in a case deciding such an application and this Court should not give any indulgence in this regard.
5. It is settled legal proposition that affidavit is not an evidence within the meaning of Section 3 of the Evidence Act as held by the Courts in Prakash Rai v. J.N. Dhar, AIR 1977 Del. 73, Radha Kishan v. Navratan Mal Jain and Anr., AIR 1990 Raj. 127, S. Sukumar v. Spl. Commissioner of Commercial Taxes, Madras, AIR 1991 Mad. 238 and Glorious Plastics Ltd. v. Laghate Enterprises and Ors., AIR 1993 Bom. 224.
6. In Sudha Devi v. M.P. Narain and Ors., AIR 1988 SC 1381, the Hon'ble Supreme Court held that affidavits are not included in the definition of "evidence" in Section 3 of the Evidence Act and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order Under order 19 rule 1 & 2 of the code. Similar view has been reiterated in Range Forest Officer vs. S.T. Hadimani, 2002 (3) SCC 25, wherein the Apex Court held that filing of an affidavit only of his own statement in his favour cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion of a particular fact-situation.
7. This Court, in Jagdish v. Smt. Premlata Rai, AIR 1990 Raj. 87, held that a decree passed solely and wholly on the basis of affidavits filed before the Court cannot be treated as a decree based on evidence. In Radha Kishan (supra), the Court was dealing with an application that petitioner therein had been dispossessed from the land in dispute inspite of the interim order of the Court. It was observed as under :-
"In view of the order of the trial Court that there was no order under Order 19 Rule 1 CPC, the affidavits filed by the parties without giving an opportunity of cross-examine the deponents, cannot be treated as evidence in the law, .................. and in that event there was no material on record worth the name before the trial Court to come to the conclusion...."
8. In Bhairon Lal and Anr. v. Chandmal and Anr., 1993 (2) RLR 764, this Court has taken a view that miscellaneous application may be decided and interlocutory orders may be passed on the basis of affidavits without there being order of Court under Order 19 Rules 1 and 2. However, that case stood on a different footing and the facts are quite distinguishable as the Court made the observation as under :-
"I find that in the instant case, no such objection was raised by the defendant-tenants before the trial Court at the time when the application under Section 13(5) was taken up for arguments. So far as the defendant-tenants are concerned the controversy with regard to the payment of the rent to the counsel for the plaintiffs under a receipt and thereafter that it was paid to his own lawyer and then through him to the counsel for the plaintiffs has been raised on the basis of a baldm averment....in the reply to the application under Section 13(5) and naturally the plaintiff was left with no alternative but to file an affidavit of his counsel to the effect that neither the rent for the period 9.1.84 to 8th March 1984 had been received nor any receipt had been passed on. The healthy traditions are that even if an statement is made at Bar by the learned counsel it is to be accepted."
9. On the contrary, in Smt. Anusuya v. Poona Ram, Civil Reveision No. 620/1992, decided on 12.1.93 dealing with the same issue, this Court held as under :-
"It is not required that elaborate reasons are to be given for granting permission to cross-examine the deponent of an affidavit. As a matter of fact, unless there are some weighty reasons to refuse the permission to cross-examine the deponent of an affidavit, or it can be said that the prayer for cross-examination is not bonafide, ordinarily the permission to cross-examine when demanded must be granted. Cross-examining a person, who makes a statement either in court or by affirming before Oath Commissioner in order to adjudge its varac-ity, is a basic ingredient of principles of natural justice to which all judicial norms must conform. It rather requires special and weighty reasons to refuse the cross-examination to a person who wants to challenge the correctness of facts sworn in an affidavit."
10. While deciding the said case, this Court placed reliance upon its earlier judgment in Bhanwarlal v. Smt. Kamla Devi, 1981 RLW 464, wherein the learned District Judge had refused to grant permission to cross-examine a deponent on an affidavit. Examining the scope of Order XIX Rule 2 of the Code, this Court held as under :-
"Under Order XIX Rule 2 CPC, when the petitioner had moved an application for cross-examination of the deponents of the affidavits, the District Judge could order that the deponents of the affidavits be produced for cross-examination. He had jurisdiction to do so. This is, of course, subject to the condition that request for cross-examination should be bonafide. It has not been shown that this request was made for cross- examination of the deponents of the affidavits was not bonafide....As the order has materially prejudiced the cause of the petitioner and has affected the decision of the application, the order under revision, if allowed to stand, would occasion a failure of justice."
11. The ratio of the aforesaid judgments comes to that not permitting a party to cross-examine the deponent of an affidavit, may, in a given case, materially prejudice the person against whom the affidavit has been filed and ordinarily, not permitting the cross-examination amounts to exercise of jurisdiction illegally or with material irregularity.
12. In Smt. Sudha and Anr. v. Man Mohan and Ors., AIR 1996 Raj. 59, this Court held that application for cross-examination may be rejected if it is vague and does not disclose reasons which can be said to be bonafide by giving cogent and convincing reasons. This Court found that the application under Order XIX Rule 2 of the Code was not bonafide and had been filed to stall the proceedings in the suit and to cause a delay and had rightly been rejected by the trial Court.
13. Similarly, in Abdul Nisar v. Smt. Saroj and Ors., 1999 WLC 767, RLW 1999(2) Raj. 742, this Court, placing reliance upon the judgment in Smt. Sudha (supra) reiterated that cross-examination of deponent of an affidavit should not be permitted when the application was. vague and was disclosing bonafide reasons.
14. A Division Bench of the Allahabad High Court, in Khushi Ram Dedwal and Anr. v. Additional Judge, Small Causes Court/Prescribed Authority, Meerut and Ors., 1998 (1) RCJ 315, considered the scope of application of Order XIX of the Code in an application under the Rent Control Act and held that cross-examination of a deponent must be refused if found not necessary and would only hamper the expeditious disposal of the case. The Court held as under :-
"The principle that a party is to be permitted to cross- examine on the principle of natural justice cannot be accepted in every case. Oral examination in all cases is not contemplated. Even in disciplinary inquiries in exceptional cases oral evidence may not be insisted'upon as held in
Hira Nath Mishra v. Principal, Rajendra Medical College,
AIR 1973 SC 1260 and
State of Haryana v. Rattar Singh,
AIR 1977 SC 1512. If a party wants to cross- examine, he has to give the necessary facts in the application as to why the cross-examination is necessary. The Prescribed Authority will give the reasons either for allowing or refusing the cross-examination. The reasons disclosed in the order of the Prescribed Authority will show whether he acted fairly or not. Considering every aspect of the matter the authority under the
provisions of U.P. Act No. 13 of 1972 can permit the cross- examination of a deponent of an affidavit only when it is necessary in the case."
15. In Ganpat Singh and Anr. v. Ashok Kumar and Ors., 2000(1) WLC 499, RLW 1999(3) Raj. 1525, this Court again reiterated the law laid down in Smt. Sudha and Ors. (supra) observing as under :-
"...two conditions are necessary for grant of permission under Order 19 Rule 2 CPC. The first is that the application should be bonafide which means that it should be supported by sufficient and cogent reasons and the second is that the Court should be satisfied that permitting the cross-examination of the deponent was necessary in the interest of justice. It is obvious that for the purpose coming to the conclusion whether it is necessary or not necessary to allow the permission of cross-examination the deponent of an affidavit, it is the court concerned and none else which has to arrive at an independent conclusion."
16. In Chhotu Khan v. Abdul Karim, AIR 1991 Raj. 119, 1991(1) RLW 172, this Court had considered the scope of provisions of Order 19 Rules 1 and 2 of the Code placing reliance upon large number of its earlier judgments including Sultan Khan v. Brij Mohan, 1970 RLW 74, and came to the conclusion that the said provisions makes it abundantly clear that the Court may order the attendance of deponent for cross-examination and the said provisions do not empower the Court to issue process to enforce the attendance of the deponent. The Court further held that if a party fails to produce the deponent of the affidavit filed by him for cross-examination, affidavit of the deponent failing to attend the Court must be ignored.
17. In Sultan Khan (supra), this Court observed as under :-
"On the other hand, if the provision contained in Order 19 Rule 2 CPC is taken to mean compulsion and as a rule cross-examination is allowed in interlocutory proceedings, there would be invariably considerable delay in the disposal of the same and it is very likely that in number of cases the delay involved may defeat the object of the application... These considerations lean in favour of giving the word 'may' its ordinary meaning in this rule, i.e. implying a discretion... It is in the discretion of the Court to order the attendance of the deponents for their cross-examination on the affidavits filed by them."
18. A Division Bench of this Court, in Ram Swaroop v. Bholu Ram, AIR 1991 Raj. 56, considered the scope of application of Order 19 while considering the application under Order 39 Rules 1 and 2 for grant of temporary injunction and held as under :-
"Apart from the principles of natural justice, having regard to the statutory
provisions contained in Section 30 and Order 19 Rules 1 and 2 CPC read with Order 39 Rule 1, we are of the view that the Court possession power to call the deponent for cross- examination when an affidavit has been filed in support of an application under
Order 39 Rule 1 CPC."
19. While deciding the said case, this Court placed reliance upon large number of judgments, including Kanhaiya Lal v. Megh Raj, AIR 1954 Nag. 260, wherein the view has been taken that expression "any application" in Order 19 Rule 2 of the Code would include any application under the Code, since the Code does not define the word "application" nor does it make any distinction between one application and another. Similar view has been reiterated in Shiv Sahai v. Tika, AIR 1942 Oudh 350, holding as under :-
"A perusal of this rule leaves no doubt that it is open to a Court on sufficient ground to allow proof of facts by means of affidavit, 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 facts alleged therein without the production of the declarant.
Rule 2 of Order 19 CPC 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."
20. In Pijush Kanti Guha v. Smt. Kinnori Mullick, AIR 1984 Cal. 184, the Calcutta High Court considered the scope of application elaborately Under Order XIX of the Code, while considering the application for temporary injunction, and held that there is a discretion left with the Court and no party can claim an absolute right to call the declarants of the affidavits for cross- examination, but it has to be determined on the facts of each case.
21. In Ranjit Ghosh v. Hindustan Steel Ltd., AIR 1971 Cal. 100, the Court held that while deciding interlocutory applications, where the affidavits form sheet-anchor and facts are being tried to be proved by affidavits, the other party may be given an opportunity to meet the contents thereof, otherwise the order would stand vitiated being passed in "non-conformance to the procedure established by law."
22. In Abdul Hameed Khan v. Mujeed-Ul-Hasan and Ors., AIR 1975 All 398, it was held that if contents of affidavits are contradicted, the Court may summon the deponents of the affidavits for cross- examination.
23. While examining a case under the provisions of the Industrial Disputes Act, 1947, the Hon'ble Supreme Court, in Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors., AIR 1972 SC 330, considered the application of Order 19 Rules 1 and 2 of the Code and observed as under :-
But the application of principles of natural justice does not imply that what is not evidence, can be acted upon. On the other hand, what it means is that no material can be relied upon to establish a contested fact which are not spoken to by the persons who are competent to speak about them and are subject to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal, the question that naturally arises is : is it a genuine document, what are its contents and are the statements contained therein true.... If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under Order 19 of the Code and the Evidence Act, both of which incorporate the general principles."
24. In Needle I.I. Ltd. and Ors. v. N.I.N.I.H. Ltd. and Ors., AIR 1981 SC 1298, the Hon'ble Apex Court considered the case under the Indian Companies Act and observed that
" it is generally dissatisfactory to record a finding involving grave consequences to a person on the basis of affidavits and documents without asking that person to submit to cross-examination."
unless the parties have agreed to proceed with the matter on the basis of affidavits only.
25. In Ramesh Kumar v. Keshav Ran, AIR 1992 SC 700, the Hon'ble Supreme Court considered the scope of application of provisions of Order 19 Rules 1 and 2 in a Rent Control matter, observing as under :-
"The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provisions and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross- examination, may have recourse to that procedure."
26. In view of the above, the law on the issue can be summarised that Code does not define "application" nor makes any distinction between one application and another. Provisions of Order XIX Rules 1 and 2 of the Code are applicable while deciding any application under the Code. The party seeking permission of the Court to cross-examine the declarant must disclose the reasons why it it necessary to cross-examine the deponents and it should not merely be a pretext for delaying the proceedings. Tendency to procrastinate proceedings by any means has to be depricated, but at the same time, sufficiency of the grounds/reasons for seeking permission to cross-examine the deponents require to be examined. The Court is under an obligation to pass an appropriate order giving cogent reasons while allowing or rejecting the application for calling the deponent for cross-examination. Undoubtedly, such a course is not to be adopted in a routine manner. No straight- jacket formulae can be adopted. The Court has to examine the facts and circumstances of each case. Extraordinary method of proving or disproving the facts in a judicial proceeding by affidavits is an extraordinary method permitted in interlocutory matters only to save time in the disposal of the proceedings in which Court does not decide the rights of the parties finally. It should always be remembered that Court has always its inherent powers to pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court and, thus, in a given case, if facts warrant calling the deponents of the affidavits, the Court may permit their cross-examination. In a particular fact- situation, the Court may find cross-examination necessary for satisfying itself about the truth of the averments in the affidavit, but the party must insist for examination of deponent and there must be bonafide reasons. Though the order to be passed may be interim in nature but may seriously prejudice the cause of the other party, therefore, Court has to pass order on such an application considering all pros and cons of the case.
27. The facts and circumstances of the case requires to be considered in the light of the aforesaid settled proposition. Petitioner-defendant is paying the rent of the suit premises to the tune of Rs. 60/- per month. Non-petitioher/plaintiff may ask fixation of a very high provisional rent and in order to get the interim order for fixing provisional rent, a large number of affidavits had been filed. Mr. M.C. Mehta, a registered Valuer, assessed the alleged prevailing rent of the shop in dispute at Rs. 7455/- per month and filed an affidavit to this effect. Another is the affidavit filed by Mr. Jugal Kishore, Treasurer of Mewara Kalal Samaj to the effect that one of the shops near the shop in dispute was let out at the monthly rent of Rs. 6000/-. Mr. Sunil Kumar has filed an affidavit showing that he was paying the rent of Rs. 4000/- per month and he further stated that it was a reasonable one. There were certain other affidavits to the same effect. Petitioner-defendant filed the application seeking permission to cross-examine the deponents thereof, disputing the contents of those affidavits. Regarding the affidavit of Mr. Sunil Kumar, it was contended that the shop, in respect of which he had filed the affidavit, was still lying vacant and various other shops in the nearby were fetching the rent to the extent of Rs. 170/- or Rs. 200/- per month. Even in respect of the shop owned by Mewara Kalal Samaj, the affidavit was disputed pointing out that the actual rent paid for those shops was very low and, therefore, it was necessary for the petitioner-defendant to cross-examine those deponents. The application has been rejected without giving any reason whatsoever, except observing that in summary proceedings, the provision of Order XIX are not attracted.
28. The trial Court has not given any finding whether the prayer for cross-examination was bonafide or not and what were the reasons for which the demand could not be accepted though the Court is under an obligation, while refusing such an application, to give cogent and weighty reasons. It is not the finding by the trial court that the application had been filed to delay the process of the Court. Nor there is any finding as to whether it was necessary to cross-examine the declarants for deciding the application for fixation of provisional rent. Nothing is on record to show that contents of the said affidavits are true. Moreso, the Court failed to appreciate that if the provisional rent is fixed at a higher rate, believing the affidavits filed by the deponents in this case, without examining the correctness of such affidavits or contents thereof and suit is decided at a belated stage, it would not only deprive the petitioner-defendant of a right of hearing, but may cause a serious prejudice to him for the reason that in case he fails to pay the provisional rent fixed by the Court at a higher rate for a period of six months, his defence would be liable to be struck off under the provisions of Clause (5) of Section 13 of the Act, 1950 and such an eventuality may not only prove disastrous but may also force the petitioner-defendant to evict. This being the position, the order to be passed may have grave material consequence, which may jeopardise the very continuation of petitioner in possession of the suit premises, therefore, the impugned order, if allowed to stand, in my considered opinion, would occasion a failure of justice.
29. Thus, in view of the above, the petition succeeds and is allowed. The impugned order of the trial Court dated 22.9.2001 is set-aside. The application is allowed. Petitioner-defendant is permitted to cross-examine the deponents of those affidavits. The trial Court is requested to fix an early date for that purpose and decide the case expeditiously in accordance with law. No costs.