CHHANGANI, J. - (1.) THIS is a plaintiff's revision against the order dated 22. 8. 70 of the Additional District Judge, No. 1, Jodhpur, requiring the plaintiff-petitioner Kusum Kumar to appear in court for cross examination on his affidavit dated 19. 6. 70.
(2.) THE plaintiff petitioner filed a suit against the defendant on 19. 6. 70 claiming certain reliefs. THE plaintiff also submitted an application supported by his affidavit for on injunction. THE trial court granted an ad interim injunction against the defendant. On 1 8-70 the defendant while opposing the plaintiff petitioner's prayer for temporary injunction submitted an application that the plaintiff be permitted to be cross examined by the defendant on his affidavit. THE trial court allowed the defendant's application and ordered the plaintiff to appear for cross examination. Aggrieved by this order, the plaintiff has approached this Court in revision. It has been contended that the trial court ha3 acted in breach of the express provisions of O. 39, r. 1 C. P. C. in requiring the plaintiff to appear for cross examination and consequently, has acted with material illegality and as such, the order requires to be interfered with in the exercise of revisional jurisdiction. Reliance was placed on Kanbi Mavji Khinji vs. Kanbi Manjibhai Abjibhai (1 ). The controversy in this connection centers over the issue whether in deciding an application u/o. 39, R. 1 C. P. C. the provisions of 019, rules 1 and 2 can be pressed into service or not. The precise controversy came before the Gujarat High Court in Kanbi Mavji Khinji vs. Kanbi Manjibhai Abjibhai (l ). After considering the combined effect of section 30, and O. 19, rules I & 2, the learned Judge reached a conclusion that only in cases where the court exercises general power of ordering facts to be proved by affidavit either of its own motion or on the application of any party, that power is to be exercised, subject to the conditions and limitations, imposed under order 19, Rules 1 & 2. The court further observed that there are some provisions in the schedule where the court has been expressly permitted to decide certain matters on affidavits only and O. 39, r. 1, was cited as one of the instances of such provisions. The learned Judge further noticed that there is no provision in O. 39 R. 1 that the exercise of powers is subject to the conditions and limitations prescribed in O. 19 Rules 1 & 2 and expressed the opinion that that section gave general power to the courts to get certain facts proved by an affidavit subject of course to the conditions and limitations in O. 19 r. 1 & 2. In addition to this general power, the Code in some cases confers special powers upon the courts to decide certain matters on affidavits only. The exercise of this special power, according to the learned Judge is not subject to the conditions and limitations of 0. 19 r. 1. The eventual conclusion was summed up as follows: - "in my opinion, that power, which the Court derives, is a general power and if that power is to be exercised, it is subject to the limitations and conditions prescribed. But when the Court has been given special power to decide certain interlocutory matters by affidavit, that power is unlettered. It is not subject to limitations and conditions prescribed. If really the Legislature intended to place any conditions and limitations, in exercise of that special power also the Legislature could have used those words in that order like the O. 39, Rule 1 of the Code. The Legislature has, in my opinion wisely not done it. The object underlying it may be that the rights of the parties in such interlocutory applications are not being decided finally. The parties are not going to suffer as only for certain limited purpose, these interlocutory applications were being decided and the rights of the parties were not being finally decided. That appears to be the reason why no such conditions and limitations have been prescribed in exercise of that special power. " No case taking a contrary view has been cited before me. I have considered the reasoning of the case and the language of S. 30, O. 19 rules 1 & 2 and O. 39, r. 1. 0. 39, r. 1 CPC not only does not contain provision subjecting the exercise of power under it to conditions and limitations prescribed in O. 19 r. 1 & 2 but further requires the court to be satisfied on affidavit or otherwise and does require the satisfaction to be derived from proof of facts or production of evidence. It appears fair to infer that having regard to the need of prompt and quick decision as to the grant or refusal of temporary injunctions and the temporary duration of the consequences of the injunctions the Legislature made special provision in O. 39, R. 1 for decisions on affidavit and did not favour protracted inquiries involving receipt of evidence in proof of facts. The power given to the court to act on affidavit by O. 39, r. 1 is, therefore, of special nature and must be contradistinguished from general power of receiving proof of facts on affidavit and of receiving evidence on affidavits on applications and the conditions and limitations prescribed in connection with the exercise of general power should not be imported in connection with the exercise of special power under 0. 39 r. 1. The lower court acted with illegality in the exercise of jurisdiction in invoking O. 19 rules 1 & 2 C. P. C. and insisting upon the production of the plaintiff for cross examination. The revision application is allowed. The order under challenge is set aside. The trial court will decide the application after considering affidavits that may be filed by parties. .;