ABDUL HAMEED KHAN Vs. MUJEED UL HASAN

JUDGEMENT

(1.) THE only question that arises for decision in this Civil revision is whether or not the Court has power to summon a deponent, who has filed an affidavit in support of his application under Order XXXIX, Rule 1, Civil Procedure Code, for his cross-examination at the instance of other party.

(2.) NO provision in the Code of Civil Procedure has been pointed out which specifically debars a court from doing so. On the other hand, the enabling provision conferring this power on the Court contained in Rule 2 of Order XIX of the Code of Civil Procedure is most generally worded. Sub-rule (1) of this Rule 2 provides :-

(3.) FROM the above provisions it would be evident that where the court for sufficient reasons either of its own accord or on the application of a party permits any particular fact or facts to be proved by evidence instead of the witness being examined in court it will also take into consideration the limitations and the safeguard contained in the proviso to Rule 1 and in the latter part of sub-rule (1) of Rule 2 of Order XIX. In other words, if a party bona fide desires the production of a witness for cross-examination no order shall be made authorising the evidence of such person to be given on affidavit. Similarly, where on the application of any party evidence has been permitted to be given on affidavit and the other party wants that the attendance of the deponent should be secured for cross-examination the court may ordinarily grant that request.