Amogh Deshmukh vs Manasa Deshmukh
2022 Latest Caselaw 6666 Tel

Citation : 2022 Latest Caselaw 6666 Tel
Judgement Date : 9 December, 2022

Telangana High Court

Amogh Deshmukh vs Manasa Deshmukh on 9 December, 2022

Bench: A.Abhishek Reddy

   THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY

       CIVIL REVISION PETITION No.2034 of 2022


ORDER:

Challenging the order dated 11.08.2022 passed by the

learned Senior Civil Judge-cum-Assistant Sessions Judge,

Sangareddy, in dismissing I.A.No.550 of 2022 in I.A.No.503

of 2021 in H.M.O.P.No.68 of 2017, filed by the petitioner-

husband seeking a direction to the respondent-wife to attend

the Court for the purpose of cross-examination with regard to

the averments made in I.A. No.503 of 2021, the present Civil

Revision Petition has been filed.

Learned counsel for the petitioner has stated that the

petitioner has filed H.M.O.P.No.68 of 2017 for granting

decree of divorce and the said H.M.O.P. was decreed ex parte

by the learned Senior Civil Judge, Sangareddy, vide order

dated 19.02.2021. That subsequently, in the month of July,

2021, the respondent has filed I.A.No.503 of 2021 under Order AAR, J

IX Rule 13 CPC seeking to set aside the said ex parte decree

dated 19.02.2021 passed against the respondent. The learned

counsel for the petitioner has stated that on the ground that the

affidavit filed in support of the said I.A.No.503 of 2021 is

bereft of any details, the petitioner has filed I.A.No.550 of

2022 under Order XIX Rule 2 read with Section 151 of CPC

seeking to cross-examine the respondent with regard to the

veracity of the averments mentioned in the affidavit filed in

support of the said I.A.No.503 of 2021. That the trial Court

without appreciating the provisions of Order XIX Rule 2 CPC

has passed the order under revision dated 11.08.2022

dismissing I.A.No.550 of 2022 in a mechanical manner. That

absolutely, no valid reasons are given by the Court below for

dismissing the said I.A.No.550 of 2022 filed by the petitioner.

The learned counsel has relied on the judgment of the

combined High Court of Andhra Pradesh in C. Srinivasa Rao AAR, J

and others v. K. Manohar Rao and others1 wherein this Court

has interpreted the provisions of Order XIX Rule 2 CPC.

Learned counsel appearing on behalf of the respondent

has fairly submitted that the order under revision dated

11.08.2022 is bereft of any valid reasons, as such, the same

may be set aside and the matter may be remanded back to the

trial Court for passing orders afresh in the said I.A.No.550 of

2022. But, the learned counsel for the petitioner has

vehemently opposed for remanding the matter back again to

the trial Court for passing orders afresh and has prayed for

passing suitable orders in the CRP.

Having gone through the order under revision dated

11.08.2022, the affidavit filed by the respondent in support of

I.A.No.503 of 2021 and the counter filed by the petitioner to

the said I.A.No.503 of 2021, this Court is of the opinion that

the reason given by the trial Court for dismissing I.A.No.550

MANU/AP/0125/1981 (CRP.No.4261 of 1980 order dated 07.04.1981) AAR, J

of 2022 is not a legally valid one. The reason given by the

trial Court that the cross-examination of the deponent of an

affidavit can be done after passing of the orders, is totally

wrong and contrary to the provision of Order XIX Rule 2

CPC, which is very clear to the effect that if any party wishes

to cross-examine the deponent of an affidavit with regard to

the averments mentioned in the said affidavit, the said party

shall be permitted to do so before passing orders in that

application. The very purpose of cross-examining the deponent

of an affidavit is to test the veracity of the averments

mentioned in the said affidavit and if any order is passed in the

said I.A.No.503 of 2021 filed by the respondent, the very

purpose of filing I.A.No.550 of 2022 by the petitioner will be

defeated. In the order under revision, the trial Court has held

that the I.A.No.550 of 2022 filed by the petitioner to cross-

examine the deponent is not maintainable without recording

the findings in I.A.No.503 of 2021 filed by the respondent

under Order IX Rule 13 CPC, is without any legal basis and AAR, J

deserves to be set aside. Moreover, this Court has held in C.

Srinivasa Rao (1 supra) as under:

"There may be a case where each of the contending parties files the affidavit of the same person containing diametrically opposite affirmations and the Court would be anxious to find out as to which of the versions is true. To say that, even in such a situation, the Court has to accept one of the two affidavits and reject the other affidavit of the same person without any power to examine the deponent or to summon him for cross-examination would amount to reducing the proceedings of the Court to a mere gamble. It would be abhorrent to all notions of judicial administration if a Court is required to pass orders in any judicial proceeding without the Court being satisfied with the existence or non- existence of the circumstance under which the orders have to be passed."

Having regard to the above, the present Civil Revision

Petition is allowed setting aside the order under revision dated

11.08.2022 in I.A.No.550 of 2022 in I.A.No.503 of 2021 in

H.M.O.P.No.68 of 2017. Consequently, I.A.No.550 of 2022 is

allowed permitting the petitioner to cross-examine the

respondent, who has filed I.A.No.503 of 2021. It is made clear

that the petitioner is not entitled to cross-examine the

respondent on the merits of the case but only with regard to the

averments mentioned in the affidavit filed in support of

I.A.No.503 of 2021. As it is stated by the learned counsel for AAR, J

the respondent that the next date of hearing is on 31.01.2023,

the respondent shall endeavour to be present in the Court on