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Judgment
N.A. Britto, J.—Heard. This Writ Petition is directed against Order dated 15-2-2010 of the learned Adhoc District Judge, Mapusa. The writ petitioners herein are the plaintiffs in Civil Suit No. 48 of 2005. They have closed their evidence in the said civil suit. The main contestants in the said civil suit were the defendant nos.1 and 2. Defendant Nos.1 and 2 have chosen not to lead any evidence. Defendant Nos.1 and 2 did file a written statement, and an affidavit as required in terms of Order VI, Rule 15(4) of C.P.C. The plaintiffs then filed an application purporting it to be an application under Order 19, Rule 2 to call the defendants for cross-examination on the said affidavit, stating that the said defendants the plaintiffs in their evidence indicated multiple frauds committed by the defendants and the defendants had pleaded a case contrary to that of the plaintiffs. Here, it may be stated that the written statement was signed and verified only by defendant No. 1. That application came to be rejected by the impugned Order. The learned trial Court in rejecting the said application has come to the conclusion that the plaintiffs had not specified as under what provisions of law the said application was filed. Prayer to invoke the provisions of Order 19, Rule 2 C.P.C. has been rejected observing that the said provision does not empower the Court to direct any party to the proceedings to enter the witness box and to face cross-examination from the other side.
Learned Counsel appearing on behalf of the petitioners/plaintiffs submits that earlier the learned trial Court had ordered the defendant No. 3-Village Panchayat and defendant No. 4-Deputy Town Planner to be summoned as witnesses of the plaintiffs, and, therefore the learned trial Court ought not to have adopted a different standard in case of the defendant nos. 1 and 2. Learned Counsel has further submitted that in case defendant nos.1 and 2 are cross-examined by the plaintiffs no prejudice will be caused to the said defendants. In support of his submissions, learned Counsel has placed reliance on Lalit Kishore Vs. Meeru Sharma and Another, and E. Suresh Babu Vs. Food Corporation of India, .
No notice has been issued to defendant nos.1 and 2. On the other hand, Ms. S. Linhares, learned Additional Government Advocate has appeared on behalf of Respondent Nos.3 to 6 and has submitted that no evidence was given by the defendant nos. 1 and 2 nor they had filed any affidavit in evidence, and, therefore they could not be compelled to give evidence in case they did not desire to do so. Learned Additional Government Advocate has placed reliance on Chotu Khan Vs. Abdul Karim, as well as AIR 1967 Guj. 228).
As already stated, the plaintiffs have closed their evidence and the case is ripe for Judgment. There can be no doubt, as stated by the Apex Court in Lalit Kishore v. Meeru Sharma and another(supra) that a Court has inherent power to do complete justice to the parties. The provisions of Order 19, Rule 2 would be applicable in a case where facts are allowed to be proved by affidavits and that is not the case at hand, where the defendants have chosen to step in the witness box and give evidence in support of the case set up by them in the written statement.
The case of E. Suresh Babu v. Food Corporation of India(supra) stood on its own facts. It was a case where an application was filed and an affidavit was also filed in support thereof, and, in those circumstances the defendant was called for cross-examination. An affidavit filed to support a pleading is entirely different to the one filed to prove a fact or given in evidence.
Considering the facts of the case and the stage of the suit has reached, in my opinion, this is not a fit case for interference in supervisory jurisdiction particularly in view of what has been stated in the Apex Court in the case of Abdul Razak (D) through L.Rs. and Others Vs. Mangesh Rajaram Wagle and Others, reiterating Surya Dev Rai Vs. Ram Chander Rai and Others, wherein it stated that supervisory jurisdiction will be exercised not only when there is disregard to the provisions of law but also when there is grave injustice occasioned thereby. No injustice has been caused to the plaintiffs by the impugned order. Petition therefore is dismissed.