P N KARUPPA Vs. KARUPPAYAL

JUDGEMENT

(1.) Plaintiff is the revision petitioner. The plaintiff filed the suit for declaration and injunction. The defendants were set ex parte and the third defendant filed an application under Section 5 of the Limitation Act to condone the delay in filing petition to set aside the ex parte decree and in that application, the revision petitioner/plaintiff filed petition under Order 19 Rule 2 to cross-examine the third defendant viz., the third respondent herein and that application was dismissed and aggrieved by the same, this revision is filed.

(2.) Mr. N. Manokaran, learned counsel for the revision petitioner submitted that the third defendant filed the application to condone the delay stating that she was suffering from jaundice and to disprove her claim, she has to be cross-examined and for that purpose, the application was filed and under Order 19 Rules 1 and 2, the Court has got power to allow the application and that power was not properly exercised.

(3.) I am unable to accept the contention of the learned counsel for the revision petitioner. Order 19 Rule 19 of the Code of Civil Procedure deals with affidavits. Order 19 Rule 1 deals with the power of the Court to direct any party to prove any particular fact by affidavit or affidavit of any witness may be read at the hearing and if the party desires the production of a witness for cross-examination and when such witness can be produced, the Court should not allow the party to give evidence by affidavit. Order 19 Rule 2 deals with the power of the Court to order the attendance for cross-examination of the deponent who gave evidence by affidavit upon any application.