RANJIT KUMAR MALO DAS AND Vs. S. KATAKI

JUDGEMENT

(1.) THIS revision petition arises from an order of the Assistant District Judge Barpeta made on 17.7.93 in Misc (J) Case No. 20 of 1993 arising cut of TS No. 14 of 1993.

(2.) IN TS No. 14 of 1993, the Respondent herein is the Plaintiff and the Petitioners are the Defendants. In the suit, the Plaintiff filed an application (Misc (sic) Case No. 20 of 1991) under Order 30, Rule 1 and 2, Code of Civil Procedure, praying for temporary injunction restraining the Defendants from dispossessing the Plaintiff from the suit fishery and from selling or subletting the suit fishery. The Defendants made an application under Order 19, Rule 1 and 2 read with Section 151 , Code of Civil Procedure praying for attendance of the Plaintiff in person in Court and to allow the Defendants to cross -examine him. The trial Own, by an order dated 17.7.1993, rejected the application by holding, inter alia, hat the Defendants have set up a counter -claim against the Plaintiff and also have filed an application under Order 39, Rule 1 of the Code praying for injunction against the Plaintiff and that under the circumstances of the case, the Defendants have "still wide scope open for them when the same matters in two Misc cases" would be heard.

(3.) THE Supreme Court has in Sudha Davi v. Narayanan : AIR 1988 SC 1381, held that affidavits are not included in the definition of evidence in section 3 of the Evidence Act, but the affidavits can be used as evidence only if for sufficient reasons Court passes an order under Order 19, Rule 1, Code of Civil Procedure. Therefore Order 19, Rule 1 enables the Court to order any particular fact or facts to be proved by an affidavit evidence depending upon the nature of the case of a particular case or fact. Although Order 19, Rule 1, is a sort of exception to Order 18, Rule 4, Code of Civil Procedure, which stales that the evidence of the witnesses in attendance shall be taken in open Court in the presence and under the personal direction and superintendence of the Judge, it contemplates a quick disposal of the business before the Court. However, under the proviso to Order 19, Rule 1, where either party bona fide desires the production of the deponent for cross -examination and such deponent can be produced, the Court has no power, under Rule 1, to order affidavit evidence.