M BALU Vs. BANU MITHRA

JUDGEMENT

(1.) THIS Civil Revision Petition is filed by the defendants against the fair and decretal order dated 21.4.2007 made in I.A.No.1603 of 2007 in I.A.No:980 of 2007 in O.S.No: 237 of 2007 on the file of the learned District Munsif, Alandur dismissing the application filed by the plaintiffs under Order 19 Rule 2 CPC to permit them to cross examine the deponents of the counter affidavit filed in I.A.No:980 of 2007.

(2.) ACCORDING to the plaintiffs, the counter affidavit in I.A.No:980 of 2007 has been sworn to by the second respondent, whereas all the documents filed along with the counter affidavit relates to the dealings and affairs of the first respondent. The first respondent has not even filed any affidavit supporting or adopting the contents and the averments of the counter affidavit filed by the 2nd respondent. The 2nd respondent also stated n the counter that he is the power agent of the first respondent, whereas he has not even chosen to file any such power deed or furnished any details about the alleged power deed. The plaintiffs also disputes the very relationship of the first respondent and the Damodara Naidu and Jayalakshmi Ammal. The first respondent has already filed O.S.No:365 of 2005 against the plaintiffs in respect of the very same suit property, which was dismissed. Therefore, the 2nd respondent who is allegedly promoter and who has come into picture only recently cannot be allowed to state and cannot be relied about the 1st respondent's title. The plaintiffs have perfected title over the suit property by adverse possession.

(3.) ORDINARILY, evidence has to be given in the manner stated in Section 3 of Evidence Act which defines the expression "Evidence", but Rule 1 of Order XIX is an exception to that section when it provides that any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable. This is a departure from the definition of "Evidence" as contained in Section 3 of the Evidence Act and in making that departure a safeguard has been incorporated in the proviso to this Rule 1 which says: