9911796707
TMI Blog1999 (5) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby the application filed by the petitioner under Order 19 Rule 2 C.P.C. was rejected. 4. The learned Counsel for the petitioner has submitted that the provisions of Order 19 Rule 2 C.P.C. are applicable to the affidavits filed in support of the application under Order 9 Rule 2 C.P.C. It is further submitted by him that in the instant case, the plaintiff did not file any documentary evidence to prove the alleged tenancy and he chiefly relied on his own affidavit and, therefore, it was necessary to give an opportunity to the petitioner to cross-examine the plaintiff regarding the averments made by him in his affidavit and since this has not been done, the present petition deserves to be admitted and allowed. 5. The learned Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for cross-examination would be ordinarily made unless the court is satisfied and convinced that the application for summoning the deponent for cross-examination is bonafide and summoning of the deponent for cross-examination is necessary in the interest of justice and unless both these conditions are satisfied, the court would not be justified in making an order under Order under Order 19 Rule 2 C.P.C. for cross-examination of the defendant. In Chhotu Khan v. Abdul Karim 1991 (2) WLC (Raj.) 219, a learned Single Judge of this Court held that under Order 19 Rule 2 C.P.C, the Court may order the attendance of the deponent for the cross-examination but the learned Single Judge has drawn the attention to the following observations of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court is empowered to call for the records of any case which has been decided by any court subordinate thereto, if it had exceeded or failed to exercise the jurisdiction vested in it, or had acted illegally or with material irregularity. In such cases the High Court has power to make such order as it thinks fit. The restriction against exercise of such a general power has been incorporated in the proviso which was inserted in the Sub-section by the CPC Amendment Act of 1976. That proviso reads thus: Provided that the High Court shall not, under the section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where- (a) the order, if it had been made in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would occasion to failure of justice. On the face of the judgment, the finding that there was a likelihood of failure of justice, if order under revision is allowed to stand, was the finding given after taking into consideration the facts and circumstances of the case. 9. In the instant case, it must be held that the learned lower court had a jurisdiction under Order 19 Rule 2 C.P.C. to grant or not to grant permission for the cross-examination of the deponent. Hence, the impugned order dated 17.5.1999 cannot be said to have been passed, without any jurisdiction vested in the lower court. So far as the question of material irregularity is concerned, there does not appear to be anything to justify the conclusion that any material irregul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affidavit are not based on the personal knowledge of the deponent or that the evidence contained in the affidavit suffers from inherent probability as to make it completely unbelievable. Nothing prevents the petitioners from placing reliance on the circumstantial evidence and documentary evidence if any to show whether the plaintiffs case is or is not prima facie good and even if an order is passed against the petitioner under Order 39 Rules 1 and 2 C.P.C., there is nothing to prevent the petitioner from filing an appeal against that order. It would premature to hold at this stage that any irreparable injury is likely to be caused to petitioner if the impugned order is allowed to stand. 11. For the reasons mentioned above, in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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