Ali Bin Aifan

Judgement

The decision of Madhusudan Rao, J. in C. Srinivasa Rao v. K. Manohar Rao, (1981) 1 Andh LT (SN) at page 65: (AIR 1981 Andh Pra 406) in C.R.P. No. 4261 of 1980, rendered on 7-4-1981, appears to be correct and good law as against the decision rendered by Punnayya, 3. in S.V. Rao v. M. Appalaswamy, AIR 1978 Andh Pra 103, under the provisions of O.19, Rr.1 and 2 of the Civil P. C., the court has ample power to dispose of any matter including a matter falling under O.39. C.P.C. on affidavits and also other evidence. O.19, R.2, C.P.C. expressly provides that evidence may be given by affidavit and the court may at the instance of either party order the attendance for cross-examination of the deponent. I do not think the provisions of O.39, Rr.1 and 2, C.P.C., exclude the application of O.19, C.P.C., to applications filed for temporary injunctions pending suits. O.39, R. 1, C.P.C., itself provides that the court may grant a temporary injunction in any suit in respect of matters falling under Cls.(a) to (c) thereof if the allegations are proved by affidavit or otherwise. Therefore, in an application filed for temporary injunction under O.39, C.P.C. the allegations may be proved by affidavit or otherwise by the parties. The expression "or otherwise" takes in the proof by any method known to law. That is the allegations can be proved not only by affidavit but also by documentary evidence and/or oral evidence. When once the matters can be proved by adduction of documentary or oral evidence, it follows that the parties will have a right to examine-in-chief and also cross-examine and re-examine witnesses. Therefore, it cannot be said that in applications filed for temporary injunctions under O.39, C.P.C., the matters can be decided only on affidavits and not by other evidence or that the provisions of O.19, C.P.C. do not apply to the applications filed under O.39, C.P.C. The decision of Sheth, 3, in Mavji Khimji v. Manjibhai, AIR 1968 Guj 198 relied upon by Punnayya, J. in S.V. Rao v. M. Appalaswamy, AIR 1978 Andh Pra 103, does not seem to lay down the law correctly. In Abdul Hameed v. Mujeed-Ul-Hasan, AIR 1975 All 398 it was held by Jagmohanlal, J., as follows :-

"Where, in a proceedings under Order 39. Rule 1 affidavits were filed by the parties and the Court considered it necessary in view of the conflicting affidavits that deponent who filed affidavits should be summoned for cross-examination, it could not be said that the Court had committed illegality in summoning deponent for cross-examination"

2. The learned Judge referred to the decisions of the Gujarat High Court in Haroobhai M. Mehta v. State of Gujarat, AIR 1967 Guj 229 and Mavji Khimji v. Manjibhai, AIR 1968 Guj 198 and held that the said decisions do not support the contention raised on behalf of the petitioners therein that the provisions of O.19, C.P.C. are not applicable to a proceeding under O.39, C.P.C. I respectfully agree with the view taken by Jagmohanlal, 3, in the aforesaid decision namely Abdul Hameed v. Mujeed-Ul-Hasan, AIR 1975 All 398. This view of the Allahabad High Court has been followed by Madhava Rao, J., in B. Lakshmamma v. B. Yadgiri, unreported decision of this Court in C.R.P. 1990/75 rendered on 2-11-1976. Madhusudan Rao, J. in C. Srinivasa Rao v. K. Manohar Rao, unreported decision of this court in C.R.P. 4261 of 1980 rendered on 7-4-198l, short note in (1981) 1 Andh LT (SN) 65:(AIR 1981Andh Pra 406) (supra), referred to the decision of Punnayya J., in S.V. Rao v. M. Appalaswamy, AIR 1978 Andh Pra 103, and of Sheth J. in Mavji Khimji v. Manjibhai AIR 1968 Guj 198, and of Jagmohanlal, J., in Abdul Hameed v. Mujeed-Ul-Hasan, AIR 1975 All 398 and of Muktadar, J. in Konda Reddy v. G. Venkata Swamy, unreported decision of this Court in C.R.P. No. 4/1971, dated 17-9-1971, and Madhava Rao, J., in B. Lakshmamma v. B. Yadgiri, unreported decision of this Court in C.R.P. No. 1990/1975, rendered on 2-11-1976 and came to the conclusion that under O.39. R.1 C.P.C., the Court has ample jurisdiction to summon the deponents of affidavits for cross-examination. Therefore, following the aforesaid rulings of the Allahabad High Court in Abdul Hameed v. Mujeed-Ul-Hasan (supra), and of Madhusudan Rao, J. in C. Srinivasa Rao v. K. Manohar Rao (AIR 1981 Andh Pra 406) (supra), and of Madhava Rao, J., in B. Lakshmamma v. B. Yadgiri (supra). 1 hold that the provisions of O.19, C.P.C. are attracted to an application filed for a temporary injunction under O.39, C.P.C. and the Court has ample power to dispose of the 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. In this view, the order of the lower Court directing the deponents of the affidavits to be summoned for cross-examination is correct and no interference is called for in revision.

3. The Revision Petition is therefore dismissed.

Revision dismissed.