ALBINA ALEN FERNANDES Vs. KELWYN JOHN NICHOLAS PEREIRA

JUDGEMENT

(1.) This writ petition arises purely out of an interlocutory order and in the fitness of things, it would not be appropriate to interfere with the impugned order.

(2.) The petitioner filed a suit against the respondents for declaration and injunction and therein made an application for interim injunction. Both the petitioner and respondents filed their respective affidavits at the hearing of the application. However, at the request of the petitioner-plaintiff, the Court permitted the petitioner to cross-examine the defendant. At the cross-examination of the defendant, certain documents were attempted to be shown to the defendant which was objected to by the defendant's counsel. The Court upheld the objection and declined to permit further cross-examination regarding the said documents. That order of the Court is impugned in this petition.

(3.) Rule 1 of Order 19 of the Code of Civil Procedure empowers the Court for sufficient reason to order that any particular facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such terms as the Court thinks reasonable. Ordinarily, interlocutory applications are decided on affidavits and this is a practice prevalent in the subordinate Courts in the State of Maharashtra for years. The practice is good as it saves the time of the Court and reduces clogging of the Courts. If the evidence of every witness at the interlocutory stage is required to be recorded in person before the Court, the Court may not find time for the final trial of suits. Allowing of a cross-examination of any witness or a party who has filed an affidavit at the stage of interim injunction is discretionary and can be allowed only in exceptional circumstances. In the present case, at the request of the plaintiff, the Court permitted the cross-examination of the defendant affiant. Such permission can also be conditional and if the Court at any stage comes to the conclusion that cross-examination is unnecessarily prolix or irrelevant questions are being asked, the Court can curtail the cross-examination and limit it only to certain points to save the time of the Court. This can be done initially while granting permission for cross-examination or even subsequently while the cross-examination is in progress. Of course, the decision to permit cross-examination generally, or limited to certain points only must be exercised judicially and judiciously and ordinarily to save valuable judicial time without causing injustice to any party.