Andhra Pradesh High Court - Amravati
K.J. Pattabhi vs The Government Of Andhra Pradesh on 1 May, 2023
HIGH COURT OF ANDHRA PRADESH
MAIN CASE: C.R.P.No.1064 OF 2023
PROCEEDING SHEET
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02. 02.05.2023 RNT, J
1. Heard Sri S. Lakshminarayana Reddy,
learned counsel for the petitioners.
2. The plaintiffs-petitioners filed
O.S.No.748 of 2019 on the file of II
Additional Junior civil Judge, Chittoor
against the defendants- respondents for
permanent injunction which was decreed
exparte on 22.01.2020. For setting aside the
exparte decree the defendants-respondents
filed I.A.No. nil of 2020 under Order IX Rule
13 read with Section 151 CPC, along with
I.A.No.311 of 2020 under Section 5 of the
Limitation Act. The plaintiffs-petitioners
filed I.A.No.221 of 2022 under Order XIX
Rules 1 and 2 CPC, for permission to cross-
examine the deponent of the affidavit filed
along with I.A.No.311 of 2020. I.A.No.221 of
2022 has been rejected by the learned II
Additional Junior Civil Judge, Chittoor by
order dated 29.12.2022, against which the
present civil revision petition has been filed.
3. Learned counsel for the petitioners
submitted that the defendants/respondents
have filed the affidavit in support of
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I.A.No.311 of 2020 to prove the fact in
support of condonation of delay and setting
aside the exparte decree. The plaintiff-
petitioners under order XIX Rules 1 and 2
CPC have the right to cross examine the
deponent of the affidavit to elicit the truth,
that there was no sufficient cause for
condonation of delay nor for their non
appearance for setting aside the exparte
decree. He has placed reliance in the
following cases:
1. Bai Zabu Khima v Amardas
Balakdas1
2. Sripathi Rajyalakshmi and another
vs. Sripathi Seeta Mahalakshmi2
3. Veesam Mohan Reddy vs. Rebba
Pedda Agaiah3
4. K.V. Subba Rao vs The State of A.P4.
to contend that Order XIX Rule 2 CPC
applies to applications and once the affidavit
in evidence was filed upon application the
petitioners should have been given the
opportunity to cross examine the deponent
of the affidavit.
AIR 1967 Gujarat 214
1974(1) ALT 30 (S.B)
2008(2) ALT 329 (S.B)
AIR 1967 AP 202
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4. Distinguishing the judgments (1)
Sakalabaktula Vykunta Rao and another
vs. Made Appalaswamy5 and (2) Jammu
and Kashmir v. Bakshi Gulam
Mohammad6 upon which the learned II
Additional Junior Civil Judge, Chittoor
placed reliance, Sri S. Lakshminarayana
Reddy submitted that the first case related
to Order XXXIX Rule 1 CPC with respect to
which CPC specifically provides for disposal
of such application on affidavits and the
second case did not relate to the applications
under Order IX Rule 13 CPC or/and Section
5 of the Limitation Act.
5. Learned counsel for the
petitioners next submitted that instead of
confining to I.A.No.221 of 2022, in the light
of Order 19 Rules 1 and 2 CPC, the learned
Junior Civil Judge, also observed that it is
necessary to enquire into the matter and to
dispose of the case on contest. Further,
that, if it is so permitted no prejudice would
be caused to the petitioners. In his
submission, such observations, would
prejudice the disposal of I.A.No.311 of 2020
and I.A.No. nil of 2020 on merits.
6. Matter requires consideration at
depth , inter alia on the following points:
AIR 1978 AP 103
AIR 1967 Supreme Court 122
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a) The applicability of Order 19
Rule 1 and 2 CPC upon
application under Order 9 Rule 13
CPC with application under
Section 5 of Limitation Act.
b) Right of the plaintiffs of
cross examination of the deponent
of the affidavit of the applications
under Order 9 Rule 13 CPC in the
light of Order 19 Rules 1 and 2
and Order 18 Rule 4 CPC in
particular.
7. Admit.
8. Issue notice to the respondents.
The petitioners shall serve the respondents
by taking out personal notice through
Registered Post with acknowledgment due
and file proof of service personally, in
addition to the regular mode of service.
9. Order XIX Rule 2 CPC provides that
upon any application, evidence may be given
by affidavit. Section 141 CPC makes
applicable the procedural provisions of CPC
in regard to suit, to be followed, as far as it
can be made applicable, in all proceedings in
any court of civil jurisdiction. As per the
explanation "proceedings includes
proceedings under Order IX CPC". Order
XVIII Rule 4 CPC provides for examination in
chief on affidavit. „Evidence‟ in Section 3 of
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the Evidence Act though does not include
„affidavit‟ but the provision of CPC permit
evidence, examination in chief in suit on
affidavit and upon application also on
affidavit.
10. Prima facie, being of the view that
there is right of cross examination and
further that the observations made in the
impugned order shall affect the decision on
the merits of the applications pending before
Junior Civil Judge, the proceedings in
I.A.No.311 of 2020 in O.S.No.748 of 2019,
on the file of II Additional Junior Civil Judge,
Chittoor, shall remain stayed, till the next
date of listing.
11. List in 07.07.2023.
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RNT,J
Gk
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