ASHOKAYYA SANGAYYA HIREMATH Vs. SIDREMAYYA SHADAKSHARAYYA HIREMATH

JUDGEMENT

(1.) this civil revision petition involves a point of procedural law which is of considerable consequence. Invariably, when civil proceedings are instituted and a simultaneous application in made for the grant of interim relief in urgent cases, the court may sometimes grant ad interim relief for a short duration until the opposite side appears but invariably, the court directs notice to the other side and after a summary appraisal of the material before the court an interim Order is either granted or refused. In those cases where an ad interim Order has been granted, it may be confirmed or it may be vacated. The provisions of Order 39 rules 1 and 2, Civil Procedure Code basically invest a court with the power to pass interim orders which are essentially necessary to protect the interests of the parties or more importantly to avoid damage or injustice from occurring or from continuing. Undoubtedly, as happens in most cases, issues before the court are disputed and in situations such as this, it is invariably necessarily to resolve the matter completely at the stage of the trial when the evidence is recorded. There are two distinct phases in such proceedings. The first one being the stage at which the interim relief is granted and the second being the stage at which the matter is finally adjudicated. With the pressures on the courts the final hearing of a suit invariably takes a long time and therefore, the interim orders are of immense consequence and it is for this reason that the law makes provision for an in-between stage when the interim orders may be reviewable and can also be modified. The fact remains however that the first stage of the proceeding is not to be confused with and equated with the final decision when the trial takes place. Experience has unfortunately shown that a wrong practice has grown particularly where the trial courts are concerned, whereby the contesting parties and their learned advocates overload the court with a very heavy record consisting of affidavits, documents and the like and the result is that even at the interim stage such deep seated contentions on facts and law are raised that the courts are required to not only spend huge amount of judicial time but decide the matter through lengthy orders which run into 50 to 100 pages. This invariably gives rise to an appeal which is as good as a regular first appeal and ends with an equally lengthy Order and then comes the third stage when irrespective of whether the findings are concurrent or otherwise, a revision is filed which is virtually analogous to a second appeal. It is necessary to recount this because the issue that falls for determination in this civil revision petition is directly concerned with such a situation. The question therefore arises as to whether the trial court is required to draw a line while deciding interim applications. In the present civil revision petition one more dimension has arisen because the defendants in the course of a property dispute wherein the plaintiff has asked for certain interim relief which was granted, produced a whole lot of documents through the village accountant and also filed his affidavit which deals with certain factual aspects of the matter other than mere production of document. The plaintiffs' learned Advocate made a oral application to the court stating that it would become impossible for him to deal with this material unless he is permitted to cross-examine the witness concerned and the learned trial judge after hearing the parties passed an Order directing that the witness should be cross-examined. This Order is the subject-matter of the present civil revision petition. As indicated by me this case presents a new dimension because the practice of producing unlimited quantities of material at the interim stage and virtually subjecting the court to a decision on merits at that stage itself has now been sought to be expanded on the basis of the plea that cross-examination should also be permitted at that point of time. Briefly stated, the petitioners have approached this court on the ground that the Order is inherently erroneous, that such a procedure ought not to have been permitted or sanctioned and that therefore, interference is called for.

(2.) the respondents' learned Advocate has assailed the maintainability of this civil revision petition because he submits that even adopting a technical approach whereunder it is only in relation to a case decided that a revision would lie, that in fact in the present proceeding it is only an Order for producing a witness for cross-examination that has been passed, that this Order is purely discretionary, that it is permissible in law and that therefore, no revision lies against that order. The subsidiary argument canvassed is that the cross-examination of the village accountant is not going to prejudice anybody but that on the other hand it was absolutely essential if the plaintiffs were to be able to assail that evidence and that therefore, there is no ground for interference at the interim stage. On the point of maintainability, respondents' learned Advocate drew my attention to three decisions: 1. Smt. Alexandreta maria crispina de aguiare mendes of Chinchinim Salcete v Sham Roulu Naik and another; 2. Prabhakar Fotu Porob Dessai and another v Constancio Xavier Jose Joaquim Joao de'cruz and another; and

(3.) Ningawwa v Hanumappa, wherein the courts have taken the view that such an Order is, not revisable. The petitioners learned Advocate submitted that insofar as the Order is inherently incorrect and sanctions something which the court ought not to have and should not have permitted, that it is necessary that this court should intervene and the subsidiary argument is that the Order is an unusual ones insofar as normally the trial court does not sanction cross-examination at an interim stage that it would be a totally wrong precedent that is being set if such a procedure were to be permitted and that therefore, in the interest of the working of the courts it is necessary that this court should intervene and cor- rect the Order in question. I do not need to labour much on this point because the revisionary powers of this court are undoubtedly limited but they would certainly extend to a situation where an Order is erroneous and the consequences are far-reaching and in such a situation, irrespective of the stage at which the Order is passed the revisionary powers of this court could be exercised. 3. The petitioners' learned Advocate has relied on an earlier decision of this court in Viswanath Singh B.R. v Shivalingeuah, wherein this court under somewhat similar circumstances had occasion to interpret the law and this court took the view that the trial court's at the interim stage must confine themselves to affidavit evidence indicating very clearly that the court will have to stop there and not permit cross-examination of witnesses at that stage. Undoubtedly, parties are free to produce supportive materials such as documents, certified copies, records etc., but the issue was as to whether cross-examination should be permuted. This court had occasion to consider the law in some detail and to refer to two earlier decisions in Sher Singh v Jitendranath Sen and B.N.Munibasappa v Gurusiddaraja Desikendra Svamigal and others. The court examined the provisions of Order 19, rules 1 and 2 which deals with proof by affidavits and the court also considered the proviso to Order 19, rule 1 whereby the power is invested in the trial court to direct cross-examination of a witness if such a situation becomes necessary. The court however clarified that a clear distinction will have to be made between the initial stage of the proceeding and the final proof stage and pointed out that the question of cross-examination could only arise at the latter stage. Relying on this decision, petitioners' learned Advocate submitted that it was erroneous on the part of the learned trial judge to have directed cross-examination of the village accountant and that on the basis of the ratio of this decision the Order is liable to be set aside.