MOHANLAL JUGARAJ KHABIYA Vs. KAMLABAI

JUDGEMENT

(1.) This revision application arises in the following circumstances.

(2.) On December 4, 1979, the petitioners filed against the respondents Civil Suit No. 277 of 1979 in the Court of Civil Judge (Junior Division), Pimpalgaon in Nasik District, for a perpetual injunction restraining the respondents from interfering with petitioners possession over the suit land. The petitioners also filed an application for a temporary injunction pending the suit. On December 31, 1979, the respondents Nos. 1and 2 filed their say to the application for temporary injunction. The trial Court appointed a Commissioner to inspect the land and submit are port about the grievance of the petitioners that the respondents had removed certain parts of eastern fencing of their land. Mr. Gosavi, Advocate, who was appointed as a Commissioner visited the land along with the parties and their Advocates and after inspecting the land submitted his report along with the map on January 28, 1980. In support of their case, the petitioners filed affidavits of 12 witnesses and produced certain documents. The respondents also filed the affidavit of one witness on their behalf. On February 11, 1980, the respondent No. 1 and 2 filed an application at Exh. 27 for permission to cross-examine the Commissioner and the plaintiff. Thereafter, again on March 31, 1980, the respondents Nos. 1 and 2 filed another application saying that one more witness of the petitioners Maganlal Harilal Mandvia whose affidavit was filed by them recently should also be examined in the Court. By its order dated April 14, 1980, the trial Court passed an order directing the petitioners to produce his witnesses including the Commissioner for cross-examination for hearing of the application for temporary injunction. The trial Court also directed that the respondents also should keep their witnesses present for cross-examination, if the petitioners desired to do so.

(3.) It is clear from the provisions of Rule 1 of Order 39 that ordinarily the evidence on interlocutory applications for injunction should be recorded on affidavits. Relying on certain decision viz. (Kanbi Mavji Khimji v. Kanbi Manjibhai Abjibhai), A.I.R. 1968 Gujarat 198 and (Sakalabhaktula Vykunta Rao v. Made Appalaswamy), A.I.R. 1978 Andhra Pradesh 103, it was urged by Mr. Agrawal that the trial Court had no jurisdiction to summon the deponents for the purpose of cross-examination at the instance of respondents Nos. 1 and 2. In any event, he submitted that there was no valid reason whatsoever for the trial Court to pass an order directing the petitioners to produce the witnesses including the Commissioner for cross-examination. He further submitted that the impugned order passed by the trial Court displayed a total non-application of the mind on the part of the trial Court. Now it is clear that so far as the Commissioner is concerned, he had admittedly submitted his report on January 28, 1980, and the respondents Nos. 1 and 2 had already given their say. All that is averred in the application, Exh. 27, is that the Commissioner had visited the spot over again along with the Advocate of the petitioners without notice to the respondents Nos. 1 and 2. Now, in this connection it must be noticed that the Commissioners report was on record and the respondent Nos. 1 and 2 had submitted their say to that report. Assuming that the Commissioner had visited the site over again that by itself would not be a ground for calling the Commissioner for cross-examination. It was open to the respondents Nos. 1 and 2 to point out the deficiencies or the infirmities in the report of the Commissioner as they deemed fit. It would always be open to the Court to seek clarification from the Commissioner on certain points. It is also open to the Court to appoint a fresh Commissioner, if circumstances warrant such a course. However, no useful purpose can be served by calling the Commissioner for cross-examination at the interim stage on the mere allegation that the Commissioner had visited the spot a second time without notice to one of the parties. The only reason for asking the plaintiff for cross-examination is on the ground of the said alleged visit of the Commissioner on the second occasion. The learned Judge has granted the application on the ground that the respondents wanted the Commissioner for cross-examination as the report is incomplete and silent on material points. No such allegation seems to have been made in Exh. 27. The learned Judge has further observed that on perusal of the map he found that it is silent on some point. If the Court finds that the report is incomplete, it is always open to it to direct the Commissioner to file a further report. That is no ground for directing him to cross-examination, particularly at the interlocutory stage. As far as the witnesses are concerned, the learned Judge has merely observed that the Court has discretion to order the plaintiff to keep his witnesses present for cross-examination. However, the learned Judge has refrained from giving any reason whatsoever for exercising such a discretion in this case. It is significant that in the application, Exh. 27, there was no prayer for directing the plaintiff to produce the witnesses for cross-examination. The only prayer in that application is with regard to the cross-examination of the Commissioner and the plaintiff. It is not even made clear as to which of the plaintiffs were contemplated by the respondents while making the application. In my view, the procedure followed by the trial Court in passing the impugned order is not warranted either by the facts of the case or by the legal provisions. The trial Court ought not to have converted the hearing of an application for interim injunction into a full fledged hearing of a suit by passing such an order. Rule made absolute with costs and the impugned order is set aside.