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Judgment
A. Selvam, J.—The captious litigants as revision Petitioners have challenged the impugned order passed in I.A. No. 130 of 2005 in I.A. No.
23 of 2004 in Appeal Suit No. 15 of 2003 by the Sub Court, Aruppukottai.
The revision Petitioners herein as Plaintiffs have instituted Original Suit No. 15 of 1997 on the file of the District Munsif Court, Aruppukottai
praying to pass a decree of specific performance, wherein the present Respondents have been shown as Defendants. The trial court has dismissed
the suit in respect of main relief and decreed the suit in respect of refund of purchase money. Against the executable decree passed by the trial
Court, the Defendants therein as Appellants have preferred Appeal Suit No. 15 of 2003 on the file of the Court below.
During pendency of the same, the Respondents as Petitioners have filed I.A. No. 23 of 2004 under Order VI Rule 17 of the Code of Civil
Procedure, 1908 praying to permit them to make amendments mentioned therein in the appeal memorandum. During pendency of the same, the
revision Petitioners as Petitioners have filed I.A. No. 130 of 2005 under Order XIX Rule 1 and 2 of the Code of Civil Procedure, 1908. The
Court below after considering the divergent contentions raised on either side has dismissed the petition. Against the dismissal order passed in I.A.
No. 130 of 2005, the present civil revision petition has been preferred at the instance of the Petitioners as revision Petitioners.
The learned Senior Counsel appearing for the revision Petitioners has strenuously contended that Original Suit No. 153 of 1997 has been
instituted for the relief of specific performance and the trial Court has dismissed the same. But decreed the same in respect of refund of advance
amount and against executable decree passed in Original Suit No. 153 of 1997, the Defendants therein as Appellants have preferred Appeal Suit
No. 15 of 2003 and during pendency of the same, they have come forward with a petition in I.A. No. 23 of 2004 under Order VI Rule 17 of the
Code of Civil Procedure, 1908 and the revision Petitioners as Petitioners have filed the present petition under Order XIX Rule 1 and 2 of the CPC
1908 so as to permit them to cross examine the deponent of I.A. No. 23 of 2004. The Court below without considering the provisions of Order
XIX Rule 1 and 2 of the said Code and also without considering the scope of proposed amendments, has dismissed I.A. No. 130 of 2005 by way
of giving unnecessary and also supernumerary observations and therefore, the order passed in I.A. No. 130 of 2005 is liable to be set aside.
The learned Counsel appearing for the Respondents has contended that I.A. No. 23 of 2004 has been filed under Order VI Rule 17 of the
Code of Civil Procedure, 1908 for the purpose of making amendments in the appeal memorandum on the eve of death of second Respondent in
Appeal Suit No. 15 of 2003. Under the said circumstances, I.A. No. 130 of 2005 cannot be filed under Order XIX Rule 1 and 2 of the Code of
Civil Procedure, 1908 and the Court below after considering all the contentions raised on either side, has rightly dismissed I.A. No. 130 of 2005
and therefore, the order passed by the Court below is perfectly correct and the same need not be set aside.
For considering the rival submissions made by either counsel, the Court has to look into the provision of Order XIX Rule 1 and 2 of the Code
of Civil Procedure, 1908 and the same reads as follows:
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:
Provided that where it appears to the Court that either party bona fide desires the production of a witness 6 for cross-examination, and that such
witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.
Power to order attendance of deponent for cross-examination.- (1) Upon any application evidence may be given by affidavit, but the Court
may, at the instance of either party, order the attendance for cross-examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs.
From the conjoint reading of the said provision, it is made clear that upon an application under Order XIX Rule 2, the Court may direct
attendance of a deponent of an affidavit for cross examination.
The learned Senior Counsel has advanced his entire argument only on the basis of Order XIX Rule 1 and 2 of the Code of Civil Procedure,
1908. It is an admitted fact that I.A. No. 23 of 2004 has been filed under Order VI Rule 17 of the Code of Civil Procedure, 1908, wherein an
affidavit has been filed. As rightly pointed out by the learned Counsel appearing for the Respondents, I.A. No. 23 of 2004 has been filed for
making necessary amendments in the appeal memorandum due to the demise of the second Respondent in Appeal Suit No. 15 of 2003.
It is an everlasting principle of law that an affidavit can be termed to be an evidence within the ambit of Section 3 of the Indian Evidence Act
only in those cases, where the same is filed at the instance or under the direction of the Court or law, specifically permits for proof of anything by
affidavit. To put it in short, affidavit can be construed as an evidence u/s 3 of the Indian Evidence Act, if the Court has directed any party to a
proceeding to file the same or if law insists to prove a fact by way of filing an affidavit. If the said circumstance are in existence, the Court can
invoke the provisions of Order XIX Rule 1 and 2 of the Code of Civil Procedure, 1908 so as to enable the Respondent in any petition to make
cross examination to the deponent of the affidavit concerned.
In the instant case, as pointed out in many places, the proposed amendments have cropped up only due to the demise of the second
Respondent in Appeal suit No. 15 of 2003. In fact, the Court below has not at all directed the Respondents/Petitioners to file such kind of affidavit
nor the law compels them to file the same. Under the said circumstances, necessary ingredients for invoking the provision of Order XIX Rule 1 and
2 of the Code of Civil Procedure, 1908 are totally absent in the present case. Since necessary ingredients for invoking the provisions of Order
XIX Rule 1 and 2 of the Code of Civil Procedure, 1908 are not at all available in the present case, the Court cannot permit the revision Petitioners
to make cross examination to the deponent of the affidavit filed in I.A. No. 23 of 2004 and therefore, the petition filed in I.A. No. 130 of 2005
cannot be entertained.
The learned Senior Counsel has also contended that instead of discussing Order XIX Rule 1 and 2 and also connecting circumstances, the
Court below has unnecessarily given some findings in the order passed in I.A. No. 130 of 2005 and therefore, necessary direction may be given to
the Court below.
It is an admitted fact that the present petition has been filed in I.A. No. 130 of 2005 under Order XIX Rule 1 and 2 of the Code of Civil
Procedure, 1908 so as to permit the revision Petitioners to make cross examination to the deponent of affidavit filed in I.A. No. 23 of 2004 and
the first appellate Court should restrict its order only with reference to relevant provision of law. In fact the appellate Court has given unnecessary
and also supernumerary observations as well as findings and the first appellate Court is directed not to observe the same in disposing Appeal Suit
No. 15 of 2003.
It has already been pointed out that for allowing I.A. No. 130 of 2005 necessary ingredients of Order XIX Rule 1 and 2 of the Code of Civil
Procedure, 1908 are not available in the present case and therefore, the dismissal order passed by the Court below is perfectly correct. Under the
said circumstances the present civil revision petition deserves to be dismissed.
In fine, this civil revision petition deserves dismissal and accordingly is dismissed without cost. Connected Miscellaneous petitions are also
dismissed and the order passed in I.A. No. 130 of 2005 in I.A. No. 23 of 2004 in Appeal Suit No. 15 of 2003 by the Sub Court, Aruppukottai is
confirmed. However, the Sub Court, Aruppukottai is strictly directed to dispose of Appeal Suit No. 15 of 2003 before the end of March 2011
and report the same to the Registry without fail.