ALI BIN AIFAN Vs. STATE

JUDGEMENT

(1.) The decision of Madhusudan Rao,. J., in C.Srinivasa Rao and others v. K.Manohar Rao and others, 1981 1 Ani.W.R. 388: A.I.R.1981 A.P. 406. short notes at page 65 in C.R.P. No. 4261 of 1980 rendered on 7th April, 1981, appears to be correct and good law as against the decision rendered by Punnayya, J., in S.V.Rao v. M.Appaswamy, 1977 2 An.W.R. 289: A.I.R. 1978 A.P. 103. Under the provisions of Order 19, rules 1 and 2 of the Code of Civil Procedure, the Court has ample power to dispose of any matter including a matter falling under Order 39, Civil Procedure Code. On affidavits and also other evidence. Order 19, rule 2, Civil Procedure Code, expressly provides that evidence may be given by affidavit and the Court may at the instance of either party order the attendance for cross-examination of the deponent. I do not think the provisions of Order 39, rules 1 and 2, Civil Procedure Code, exclude the application of Order 19, Civil Procedure Code, to applications filed for temporary injunctions pending suits. Order 39, rule 1, Civil Procedure Code, itself provides that the Court may grant a temporary injunction in any suit in respect of matters falling under clauses (a) to (c), thereof of the allegations are proved by affidavit or otherwise. Therefore, in an application filed for temporary injunction under Order 39, Civil Procedure Code, the allegations may be proved by affidavit or otherwise by the parties. The expression "or otherwise" takes in the proof by any method known to law. That is, the allega tions can be proved not only by affidavit but also by documentary evidence and / or oral evidence. When once the matters can be proved by adduction of documentary or oral evidence, it follows that the parties will have a right to examine-in-Chief and also crossexamine and re-examine witnesses. Therefore, it cannot be said that in applications filed for temporary injunctions under Order 39, Civil Procedure Code, the matters can be decided only on affidavits and not by other evidence or that the provisions of Order 19, Civil Procedure. Code, do not apply to the applications filed under Order 39, Civil Procedure Code. The 'decision of Shet, J., in Mouji Khimji v. Manjibhai, A.I.R. 1968 Guj. 198. relied upon by Punnayya, J., in S.V.Rao v. M.Appalaswamy, 1977 2 An.W.R. 289: A.I.R. 1978 A.P. 103. does not seem to lay down the law correctly. In Abdul Hameed v. Mujeed-Ul-Hasan, A.I.R. 1975 All. 398. It was held by Jagmohanlal, J., as follows:-

(2.) The learned Judge referred to the decisions of the Gujarat High Court in Haroobhai M. Mehta v. State of Gujarat, A.I.R. 1967 Guj. 229. and Mavji Khimji v. Manjibhai, and held that the said decisions do not sugport the contention raised on behalf of the petitioners therein that the provisions of Order 19, Civil Procedure Code, are not applicable to a proceeding under Order 39, Civil Procedure Code. I respectfully agree with the view taken by Jagmohanlal, J., in the aforesaid decision namely Abdul Hameed v. Mujeed-Ul-Hasan,. This view of the Allahabad High Court has been followed by Madhava Rao, J., in B.Lakhsmamma and others v. B.Yadgiri, C.R.P. No. 1990 of 1975, dated 2nd Novemibber,-1976. Madhusudan Rao, J., in C.Srinivasa Rao v. K.Manohar Rao and others, 1981 1 A.L.T. 65 (N.R.C.). referred to the decision of Punnayya, J., in S.V.Rao v. M.Appalaswamy, 1977 2 An.W.R. 289: A.I.R. 1978 A.P. 103. and of Shet, J., in Mavjddi Khimji v. Manjibhai, A.I.R. 1968 Guj. 198. and of Jagmohanlal, J., Abudul Hameed v. Mujeed-Ul-Hasan, A.I.R. 1975 All. 398. and of Muktadar, J., in Konda Reddy v. G.Venkata Swamy, C.R.P. No. 4 of 1971, dated 17th September, 1971. and Madhava Rao, J., B.Lakshmama and others v. B.Yadgiri, C.R.P. No. 1990 of 1975, dated 2nd November, 1976. and came to the conclusion that under Order 39, rule 1, Civil Procedure Code, the Court has ample jurisdiction to summon the deponents of affidavits for cross-examination. Therefore, following the aforesaid rulings of the Allahabad High Court in Abdul Hameed v. Mujeed-Ul-Hasan,4 and of Madhusudan Rao, J., in C.Srinivasa Rao v. K.Manohar Rao and others, 1981 1 An.W.R. 288: A.I.R. 1981 A.P. 406. and of Madhava Rao, J., in B.Lakshmamma and others v. B.Yadgiri, 1977 A.P.H.N. 9. I hold that the provisions of Order 19, Civil Procedure Code, are attracted to an application filed for a temporary injunction under Order 39, Civil Procedure Code,, and the Court has ample power to dispose of the matters on affidavits and the Court has also ample jurisdiction to summon the deponents of the affidavits for cross-examination either suo motu where the Court desires that they should be cross-examined or at the instance or a party if the Court comes to the conclusion that the circumstances warrant the summoning of the deponents for cross-examination. In this view, the order of the lower Court directing the deponents of the affidavits to be summoned for cross-examination is correct and no interference is called for in revision .

(3.) The revision petition is therefore dismissed. C.R.P. dismissed.