R N ENGINEER Vs. KAUSHIK H DESAI

JUDGEMENT

(1.) THE petitioners along with respondent Nos. 3 and 4 are the opponents in application being Change Report No. 591 of 1999 pending before the learned Assistant Charity Commissioner, Greater Mumbai, Region Mumbai. Respondent No. 1 is the original applicant. There is a body known as Institution of Mechanical Engineers (India) Registered Society. The society is bound to hold its annual general body meeting in terms of memorandum, constitution and bye-laws. It is alleged that the respondent No. 1 had convened annual general body meeting on 30-8-1999 at Delhi. The registered office/head quarters of the Institute of the Mechanical Engineers (India) is situated at Mumbai. The petitioners herein had filed a Suit No. 5260 of 1999 in Bombay City Civil Court at Mumbai to restrain respondent No. 1 from holding annual general body meeting on 30-8-1999. The Civil Court rejected the petitioners application and allowed the meeting to be convened. The appeal preferred against the said order before this Court being Appeal No. 1045 of 1999 was rejected. The meeting did take place on 30-8-1999. Based on the meeting held, a change report was filed to which petitioners herein filed objections on 22-3-2000. The proceedings were kept for recording evidence. On 2-11-2000, it is the case of the petitioners, that respondent No. 1 submitted an affidavit in lieu of oral evidence and before any submissions could be made, Assistant Charity Commissioner relied on observations in the earlier order dated 2-11-2000 which is reproduced here below:

(2.) AT the hearing of the petition, on behalf of the petitioners, it is contended as under: a) That the order to grant permission to lead evidence on affidavit in the present case did not fall under Order 19, Clause 1 and fell under sub-clause (2) of Order 19 of C. P. C. Under Order 19, Rule 2 of C. P. C. the Court may at any time upon an application take any evidence by way of affidavit. Respondent No. 1 applicant had not taken out any such application. Respondent No. 2 in passing an order directing affidavit evidence to be tendered, therefore, acted without jurisdiction. (b) It is contended that merely because cross-examination of the affiant is permitted would not be a ground to permit leading of oral evidence as Rule 1 of Order 19 specifically provides that in case either party desires to cross-examine witnesses, in lieu of oral evidence no order shall be made authorizing such witness to lead evidence by affidavit. It is further submitted that the power to permit evidence on affidavit is covered under Rule 1 and that the provisions of Rule 2 of Order 19 are additional provisions and have to be read together and cannot be read in isolation or independently. At the hearing of the petition, on behalf of the petitioners, learned Counsel has relied on various judgments. Apart from those judgments as the matter was reserved for judgment other material and authorities which have come to my notice have also been considered.

(3.) TO appreciate the contention it may be necessary to reproduce Order 19 (1):. Power to order any point to be proved by affidavit. 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;