KARUNAKARAN Vs. RAJASEKARAN

JUDGEMENT

(1.) The revision petitioner is the defendant. The respondent/plaintiff, who is none other than the brother of the defendant, filed the suit in O.S.No.277 of 1999 on the file of the Subordinate Judge, Gudiyatham, for an injunction against the defendant to restrain him from interfering with the business of the plaintiff. The trial commenced on 21.10.2002. The plaintiff filed an affidavit of proof with certain documents, for which the defendant ought to have cross examined the plaintiff. At that stage, the defendant filed a memo stating that as the amended Code of Civil Procedure is prospective and not retrospective, the plaintiff should have been examined in Court rather than the Court directs him to file an affidavit as evidence in chief examination on the ground that the defendant will lose his chance of opposing marking of document and copies thereof has also not been furnished as per the C.P.C. Amendment Act 22 of 2002. The learned Subordinate Judge dismissed the memo on the ground that under Order 18 Rule 4 (1), in all cases, chief examination of all the witnesses will be by way of an affidavit along with the documents to be filed and such witnesses shall be cross-examined by the opposite party either in the Court or by a Commissioner appointed by the Court. Aggrieved over the said order, this revision petition has been filed by the defendant.

(2.) The learned Counsel appearing for the revision petitioner/defendant would contend that the amended Code of Civil Procedure came into force only on 01.07.2002 and therefore, it is only prospective and the amended Code of Civil Procedure is applicable only to the cases filed after 01.07.2002 and not to the cases filed earlier.

(3.) The learned Counsel appearing for the respondent/plaintiff would contend that the procedure laid down under amended Code of Civil Procedure is applicable to all the pending cases irrespective of the fact that whether the suits were filed earlier than 01.07.2002 or later.