Heard learned counsel for the petitioner/plaintiff and learned counsel for respondent/defendant no.1.
2. Parties are referred to as arrayed in the suit. Plaintiff filed suit praying to grant decree to pay 87,10,000/- along with interest @ 24% per annum by the defendant no.1, to restrain the first defendant from alienating the rights of Telugu movie ‘SEKHAR’ and to restrain defendant nos.11 to 13 from screening the Telugu Talkie picture ‘SEKHAR’. Along with the suit, plaintiff filed three Interlocutory Applications i.e., 874 to 876 of 2022 under Order XXXIX Rules 1 and 2 of Code of Civil Procedure, 1908 (for short, CPC) praying to restrain defendants 11 to 13 from Telecasting/ Transmitting the movie “SEKHAR”; to restrain defendant no.1 from alienating the Digital and Satellite rights to defendants 2 to 10; and to direct defendant no.1 to deposit an amount of 87,10,000/- failing which to attach picture negative of the movie, respectively in three IAs. In I.A.No.876 of 2022, the Court below asked the defendant no.1 to show-cause why order of attachment before judgment should not be passed. Notice was served in the said I.A., but defendant did not choose to furnish security or showed cause against attachment and, therefore, by order dated 19.05.2022 Court below passed order of attachment before judgment.
3. Person by name Sri B.Sudhakar Reddy filed I.A.No.365 of 2022 (old) under Order XXXVIII Rule 10 read with Section 151 of CPC praying to raise attachment order. The plaintiff counsel reported no objection for screening of the film provided screening proceeds are deposited in a bank account for securing the suit amount. Accordingly, said application was allowed directing the petitioner therein to open a separate bank account for keeping the amount derived from screening the film in that account to the extent of suit amount.
4. It appears, I.A.Nos.874 to 876 of 2022 are coming up for filing counter-affidavit by the first defendant. Matters underwent few adjournments to enable the first defendant to file counteraffidavit. At that stage, defendant no.1 filed I.A.Nos.968 to 970 of 2022 under Rule 52 of Civil Rules of Practice and Circular Orders, 1980 praying to direct the plaintiff to present for cross-examination on the affidavits filed in support of I.A.Nos.874 to 876 of 2022. I.A.No.968 of 2022 is filed in I.A.No.874 of 2022, I.A.No.970 of 2022 is filed in I.A.No.875 of 2022, I.A.No.969 is filed in I.A.No.876 of 2022.
5. First defendant alleges that various material averments in the plaint and affidavit filed in support of I.A.Nos.874 to 876 of 2022 are false and incorrect, that the first defendant has never borrowed loan, never executed the pronotes and undertaking letters relied upon by the plaintiff, and that these documents are forged and fabricated only to bring out the suit with baseless allegations, which are intended to defame the first defendant and her family and to stop release of ‘SHEKAR’ movie by any means. It is alleged that by playing fraud attachment before judgement order was obtained. First defendant therefore intends to seek leave of the court to direct the plaintiff to submit himself for cross-examination on the affidavit filed by him in three Interlocutory Applications.
6. This claim of the first defendant was opposed by the respondent/plaintiff by filing common counter-affidavit. Apart from dealing with the merits, he primarily contended that such application is not maintainable. It is further contended that on receipt of summons, first defendant failed to file counter-affidavit and dodging the matter. These petitions are invented only to dragon the matter as first defendant has no defence in three applications filed by the plaintiff.
7. The trial Court by orders impugned herein, directed the plaintiff to present before the Court on 22.07.2022 for cross-examination to prove the contents of the affidavit. On 02.09.2022, this Court passed order of interim suspension as prayed for.
8. Learned counsel for plaintiff contended that the trial Court grossly erred in ordering cross-examination of plaintiff. It is illegal to permit cross-examination based on averments in the affidavits filed in support of Interlocutory Applications filed under Order XXXIX Rules 1 and 2 of CPC. More so, even before first defendant filed counter opposing the applications. In support of his contentions, learned counsel relied on following decisions:
(i) Smt. Jahoran vs. Kalyanmal and other (AIR 2004 Rajasthan 324);
(ii) Smt. Sudha and another vs. Manmohan and other (AIR 1996 Rajasthan 59)
9. Per contra, learned counsel for first defendant contended that the plaintiff has made all false averments and played fraud before the trial Court. The first defendant did not execute any document. The documents relied by plaintiff are fabricated and therefore she sought cross-examination of the plaintiff to bring out the truth. In support of his contentions, learned counsel placed reliance on following decisions:
(i) Rayapureddi Prasadarao and others vs. Ganesana Venkatanarayana and others (2017 SCC Online Hyd 547);
(ii) V.Rama Naidu and another vs. Smt. V.Ramadevi (2018 SCC Online Hyd 210)
10. I have carefully considered the submissions of learned counsel and the decisions relied upon by them.
11. Averments made by the plaintiff in his affidavits filed in support of Interlocutory Applications are opposed and the first defendant wants to cross-examine the plaintiff having regard to said averments. They are not evidence affidavits. Moreover, correctness of the documents relied by plaintiff in the suit have to be gone into during the course of trial and not at the interlocutory stage.
12. Order XIX Rule 2 (Order XIX: Affidavits; Rule (1) xxx Rule 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) of CPC vests discretion in the trial Court to cross-examine the deponent who has filed evidence affidavit. Such discretion to be exercised in exceptional circumstances and ordinarily such recourse can be taken by civil Court in a given facts of a case when evidence affidavit is given by a third party to the litigation and his cross-examination is necessary to test the veracity of his deposition. Rule 52 (Rule 52. Cross examination on affidavit:- The Court may at any time direct that any person shall attend to the cross-examined on his affidavit) of Civil Rules of Practice and Circular Orders, 1980 only asserts what is envisaged by Order XIX Rule 2 of CPC. Strangely, the first defendant takes a detour and applies to summon the plaintiff for cross-examination under Rule 52 of Civil Rules of Practice without taking recourse to substantive provision in Order XIX of CPC. Rule 52 does not create a right in a defendant to summon plaintiff for cross-examination on the affidavit filed in support of Interlocutory Application filed Under Order XXXIX Rules 1 and 2 of CPC. Substantive provision itself confers discretion in the Court.
13. At this stage, I deem it appropriate to consider the opinion expressed by this Court in various decisions on issue of cross-examination at the stage of consideration of Order XXXIX Rules 1 and 2 applications and scope of Order XIX Rules 1 and 2 of CPC.
13.1. In Sakalabhaktula Vykunta Rao and others vs Made Appalaswamy (AIR 1978 AP 103) dealing with scope of Order XXXIX Rules 1 and 2 and Order XIX Rules 1 and 2 of CPC, learned Judge held as under:
“6. As stated above, the respondent plaintiff filed the above cited interlocutory application requesting the court to grant temporary injunction against the petitioners and also filed some affidavits in support of his contentions. Order 39, R.1 C.P.C. provides expressly that the Court is permitted to dispose of the interlocutory application of affidavits. In view of the urgency involved in the matter, the regular procedure of examining the petitioner and his witnesses and respondent and his witnesses is dispensed with and the Court is given a special power to decide the matter by affidavits. Further, the scope of enquiry is quite limited and the rights of parties are not decided finally. That being the purpose of giving special power to the Court under O.39, R.1, the question of summoning the deponent for the purpose of cross-examination at the instance of a party under O.19, Rules 1 and 2 does not arise at all. The power given to the Court under O.39, R.1 to decide the matters by affidavits is unfettered and is not subjected to the provisions of O.19, Rules 1 and 2. In short, the provisions of O.19, Rules 1 and 2 have no application at all to interlocutory matters governed by O.39, R.1. ……. ”
13.2. In Gaddipati Sambrajyam and another Vs Panguluri Mahalakshmamma and others (1995 (1) ALT 305), learned single Judge of this Court held,
“15. That is why in Sakalabatula Vykunta Rao vs. Made Appalaswamy our own High Court authoritatively held that in deciding an application under Order 39 Rule 1 of CPC in view of the urgency involved, the Court is expressly authorised to decide the point on affidavits. It was also held therein that Order 19 Rules 1 and 2 do not arise at all. The scope and the implication of the rule is thus stated therein:
“……. In view of the urgency involved in the matter, the regular procedure of examining the petitioner and his witnesses and respondent and his witnesses is dispensed with and the Court is given a special power to decide the matter by affidavits. Further, the scope of enquiry is quite limited and the rights of parties are not decided finally. That being the purpose of giving special power to the Court under Order 39 Rule 1, the question of summoning the deponent for the purpose of cross-examination at the instance of a party under Order 19 Rules 1 and 2, does not arise at all. The power given to the Court under Order 39 Rule 1, to decide the matters by affidavits is unfettered and is not subjected to the provisions of Order 19 Rules 1 and 2. In short, the provisions of Order 19, Rules 1 and 2 have no application at all to interlocutory matters governed by Order 39 Rule 1”.
16. ……. Therefore, it is apparent both from the provisions supra and also the case law on the question that notwithstanding any provision of CPC or similar law contemplates for proof prima facie, affidavits may be permitted to be produced under Order 19 Rule 2 of CPC provided the proof contemplated is only prima facie and not the proof on merits, in which case a party may desire the deponent of the affidavit to be produced before the Court when the Court may not use the affidavit by way of evidence or it can call such witness for cross-examination by the adversery. This supplements the absence of use of affidavits in any provision like Order 39, Rule 2 of CPC by virtue of Order 19 Rule 2 of CPC and not otherwise. To conclude, the law appears to be square on the question that affidavit is no evidence in view of Section 1 of Evidence Act, but it assumes the character of evidence for certain purposes as stated above in view of Order 19 Rules 1 and 2 of CPC and also in view of the definition of "evidence' under Section 3 of the Evidence Act which reads thus:
“Evidence” means and includes –
(1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence:
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence”.
An affidavit can be brought within the definition of "document' under the same provision and therefore, such a document if permitted to be produced by the Court would be evidence, however, subject to the limitations under Order 19, Rules 1 and 2 of C.P.C. Judged in the back-ground of these legal fibres the reasons of the learned Judges of the trial Court and the appellate Court appear to be a negation of such principles.”
13.3. In Shetty Chandra Shekar and others Vs Neeti Ramulu and others (2008 (2) ALD 709), Hon’ble Justice N.V.Ramana (as he then was) held as under:
“8. It is not uncommon that in proceedings under Order XXXIX, Rule 1 C.P.C. parties file affidavits in support of their respective cases. In case, the Court comes to the conclusion that it is necessary to summon the deponents of the affidavits, in view of the conflicting assertions or to find out the identity of parties, who filed affidavits of same person in support of their respective cases with opposite affirmations, then it can order so. In such circumstances, it cannot be said that the Court had committed an error or illegality in summoning the deponent for cross-examination. The purport of Order XIX Rule 2 C.P.C. appears to be that the Court need not either accept or reject the affidavits filed summarily, and it can consider the said affidavits, and if for valid and good reasons, it can always exercise its discretion to summon the deponent ,of the affidavit, to come to a just conclusion in the interest of justice, and in that regard, power is conferred on the Court to summon the person who had sworn to the affidavit and not the person who filed in support of the petition.
9. A bare perusal of the provisions of Order XIX, Rule 2, would make it clear that the question of ordering attendance for cross-examination of the deponent arises only in cases where the third party affidavits are filed in support of the cases of the respective parties. The language employed in the provision would not indicate conferring of any power on the Court to call a person swearing the affidavit filed in support of the petition, for cross-examination. The affidavit filed in support of the petition shall not be treated, as an affidavit filed by way of evidence, and in this context, it would be relevant, if a reference is made to the provisions of Section 3 of the Indian Evidence Act, 1872, which defines "evidence" to mean and include all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence. In the present case, the respondents-defendants filed the petition under Order XIX, Rule 2 C.P.C. to direct the petitioner-plaintiff No. 1 to come to the Court for the purpose of cross-examination. The question of applicability of the provisions of Order XIX, Rule 2 C.P.C. would arise only in cases where an affidavit was filed in support of the cases of the respective parties i.e. either on behalf of the plaintiff or on behalf of the defendant, by way of evidence, but certainly not an affidavit filed in support of a petition. Since the affidavit filed in support of a petition cannot be treated as evidence, the present petition filed by the respondents-defendants under Order XIX, Rule 2 C.P.C. seeking to summon the deponent of the affidavit filed in support of the petition for temporary injunction, was not maintainable, and more so when it is not the case of the respondents-defendants that they intended to summon petitioner-plaintiff No. 1 because he had sworn to the affidavit by way of evidence to support the case of the plaintiffs. The law is well settled that when affidavits are filed in a proceeding under Order XXXIX, Rule 1 C.P.C. or any other proceedings, and in case the Court entertains a doubt, with regard to the identity of the person or persons who gave the affidavit, then it has the power and discretion to order the attendance of the deponent of the affidavit, for cross-examination so as to come to a just concision, to determine such petition. In such situations, the order passed by the Court below to summon the deponent for cross-examination cannot be faulted and such orders, can neither be said to be illegal nor beyond the competence of the Court.”
13.4. In V.Rama Naidu and another Vs Smt V.Ramadevi (2018 (5) ALD 87), learned single Judge of this Court held as under:
“12. The above provisions and propositions to a considerable extent are exceptions to the general rule in Section 1 Evidence Act that Evidence Act does not extend to affidavits. These provisions require order of the Court permitting (i) any party to prove any facts by affidavit. Unless such an order is passed to take the affidavit contents as evidence, (subject to cross examination if any), any affidavit contents by itself is not evidence in chief examination in suits and original petitions, but for to consider proof of any facts in interlocutory applications. In C.S. Rowjee v. State of Andhra Pradesh (AIR 1964 SC 962), it was held by the Apex Court that facts in the affidavit uncontroverted by opposite party can be deemed as admitted to rely.”
13.5. In Smt. Jahoran (supra), the Rajasthan High Court held,
“10. Even as per the judgment of this Court relied upon by learned counsel for the petitioner in the case of Lookman (2002 (3) Raj LR 540) (supra), the trial Court was very much right in rejecting the application. In the judgment relied upon by learned counsel for the petitioner itself it is clearly observed by the Court that :
"the party seeking permission of the Court to cross-examine the declarant must disclose the reasons why it is 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 deprecated, 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."
13.6. In Smt. Sudha (supra), the Rajasthan High Court held,
“15. There is yet an another reasons to dismiss the revision petition at admission stage in limine in as much it is well to remember that Order 19, Rule 1, C.P.C. is a sort of exception to Order 18, Rule 4, C.P.C. according to which the evidence of the witnesses attendance shall be taken orally in viva voce form in Open Court in the presence and under the personal direction and superintendence of the Judge.
17. The order for attendance of deponent of the affidavit for cross-examination, is absolute discretion of the Courts-below. It is true that
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absolute discretion means not arbitrary but judicious discretion having justice oriented approach in summoning the deponent of an affidavit for cross-examination. Order for attendance of the deponent for cross-examination would not be ordinarily be made unless the Court is satisfied and convinced that application for summoning the deponent for cross-examination is bona fide and summoning of the deponent for cross-examination is necessary in the interest of justice. Unless both the conditions co-exist the subordinate Courts have no jurisdiction to summon a deponent for cross-examination under Order 19, Rule 2, C.P.C.” 14. It appears, defendant no.1 has not filed counter-affidavit in response to the summons served in three IAs filed by the plaintiff. Even after the order of attachment passed by the trial Court, no further steps were taken by the defendant no.1. In the suit plaintiff is relying upon certain documents stated to have been executed by the first defendant and asserting that first defendant owes huge amount of money and therefore sought decree to recover the said amount. According to defendant no.1, she never executed the documents relied upon by the plaintiff and those documents are forged and fabricated. These are the matters which require consideration after leading evidence on both sides. Even before counter-affidavit is filed expressing her defence and opposing the prayers in three Interlocutory Applications filed by plaintiff, straightaway these applications are filed. Defendant no.1 wants to cross-examine the plaintiff to assert at the interlocutory stage about her stand and to disprove prima facie case of plaintiff even before I.A.Nos.874 to 876 of 2022 are considered. Having regard to view expressed in the decisions referred to above, the applications filed by first defendant are misconceived. It is premature for the trial Court to grant such permission. 15. The order of trial Court is not sustainable. It is accordingly set aside. The Civil Revision Petitions are allowed. However no order as to costs. Pending miscellaneous petitions if any shall stand closed.