- (1.) THE instant revision has been filed against the impugned order dated 22.9.2001, by which the application of the petitioner under Order 10 Rule 2 read with Order 19 Rule 2 of the Code of Civil Procedure, 1908 (for short, "the Code") has been rejected.
(2.) THE facts and circumstances giving rise to this case are that non-petitioner/plaintiff filed a suit against the petitioner-defendant for fixing the standard rent of the suit premises with the averments that petitioner-defendant is his tenant on monthly rent of Rs. 60/- in a shop of 400 square feet area. An application under Section 7 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter called "the Act, 1950") for fixing the provisional rent was also filed and for that purpose, the non-petitioner/plaintiff produced some affidavits. Petitioner filed the aforesaid application for permission of cross-examining the deponents thereof, which has been rejected vide impugned order on the ground that such proceedings are summary in nature and cross-examination cannot be permitted. Hence this revision. Mr. J.R. Patel, learned counsel for the petitioner, has submitted that as the suit may be decided at a very belated stage and the provisional rent fixed by the Court may be unreasonable, the rent so fixed may prejudice the case of petitioner, therefore, the application should not have been dismissed and petitioner ought to have been accorded the permission to cross- examine the deponent of the affidavits and, thus, the order impugned is liable to be set-aside. On the contrary, Mr. Kalla, learned counsel for respondent, has opposed the application on the ground that the proceedings to determine the provisional rent are summary in nature, therefore, the application has been rightly rejected as provisions of O.19 are not attracted in a case deciding such an application and this Court should not give any indulgence in this regard. It is settled legal proposition that affidavit is not an evidence within the meaning of Section 3 of the Evidence Act as held by the Courts in Prakash Rai vs. J.N. Dhar (1), Radha Kishan vs. Navratan Mal Jain & Anr. (2), S. Sukumar vs. Spl. Commissioner of Commercial Taxes, Madras (3) and M/s. Glorious Plastics Ltd. vs. Laghate Enterprises & Ors. (4). In Sudha Devi vs. M.P. Narain & Ors. (5), the Hon'ble Supreme Court held that affidavits are not included in the definition of "evidence" in Sec.3 of the Evidence Act and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order u/O.19 R. 1 & 2 of the Code. Similar view has been reiterated in Range Forest Officer vs. S.T. Hadimani (6), wherein the Apex Court held that filing of an affidavit only of his own statement in his favour cannot be regarded as sufficient evidence for any Court or Tribunal to come to the conclusion of a particular fact-situation.
(3.) THIS Court, in Jagdish vs. Smt. Premlata Rai (7), held that a decree passed solely and wholly on the basis of affidavits filed before the Court cannot be treated as a decree based on evidence. In Radha Kishan (supra), the Court was dealing with an application that petitioner therein had been dispossessed from the land in dispute inspite of the interim order of the Court. It was observed as under :- "In view of the order of the trial Court that there was no order under Order 19 Rule 1 CPC, the affidavits filed by the parties without giving an opportunity of cross-examine the deponents, cannot be treated as evidence in the law, .................. and in that event there was no material on record worth the name before the trial Court to come to the conclusion...." In Bhairon Lal & Anr. vs. Chandmal & Anr. (8), this Court has taken a view that miscellaneous application may be decided and interlocutory orders may be passed on the basis of affidavits without there being order of Court under O. 19 Rr. 1 and 2. However, that case stood on a different footing and the facts are quite distinguishable as the Court made the observation as under :- "I find that in the instant case, no such objection was raised by the defendant-tenants before the trial Court at the time when the application under Sec. 13(5) was taken up for arguments. So far as the defendant-tenants are concerned the controversy with regard to the payment of the rent to the counsel for the plaintiffs under a receipt and thereafter that it was paid to his own lawyer and then through him to the counsel for the plaintiffs has been raised on the basis of a baldm averment....in the reply to the application under Section 13(5) and naturally the plaintiff was left with no alternative but to file an affidavit of his counsel to the effect that neither the rent for the period 9.1.84 to 8th March 1984 had been received nor any receipt had been passed on. The healthy traditions are that even if an statement is made at Bar by the learned counsel it is to be accepted." On the contrary, in Smt. Anusuya vs. Poona Ram (9), decided on 12.1.93 dealing with the same issue, this Court held as under :- "It is not required that elaborate reasons are to be given for granting permission to cross-examine the deponent of an affidavit. As a matter of fact, unless there are some weighty reasons to refuse the permission to cross-examine the deponent of an affidavit, or it can be said that the prayer for cross- examination is not bonafide, ordinarily the permission to cross- examine when demanded must be granted. Cross-examining a person, who makes a statement either in court or by affirming before Oath Commissioner in order to adjudge its varacity, is a basic ingredient of principles of natural justice to which all judicial norms must conform. It rather requires special and weighty reasons to refuse the cross-examination to a person who wants to challenge the correctness of facts sworn in an affidavit." ;