PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred these writ petitions, in sum and substance, for the following reliefs : "a) by an appropriate writ, order or direction, the order impugned dated 21.02.2018 (Annex.1) may kindly be quashed and set aside. b) by an appropriate writ, order or direction, the application under Order 19, Rule 2 CPC may kindly be allowed and the learned Appellate Court may kindly be directed to permit the petitioner/respondent to cross-examine Mohd. Atik. c) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. d) Writ petition filed by the petitioner may kindly be allowed with costs."
(2.) The present writ petition has been preferred against order dated 21.2.2018 whereby the application under Order 19, Rule 2 CPC has been dismissed. The present petitioner is proprietor of M/s. Dulhanomal Gangaram and is in possession of premises situated on MGH Road, Jodhpur. The petitioner's claim is that upon a Sale Ameen coming over the petitioner's property holding a warrant of possession, he came to know that there was a decree in favour of M/s. Rajasthan Board of Muslim Waqf and against Lakshman Singh Vijay Singh and the decree is affirmed until Hon'ble Apex Court while holding the property to be belonging to Waqf Board. At the time of execution of warrant, the Sale Ameen found the petitioner to be in possession of said property and it was submitted that they are bound by the decree passed in the case of Lakshman Singh Vijay Singh. The petitioner preferred an application under Order 21, Rule 97 CPC before the learned trial court and also preferred an application under Order 19, Rule 2 CPC for cross-examining Modh. Atik, who has filed an affidavit on behalf of respondents. The learned court below dismissed the objection submitted by the petitioner. The petitioner then preferred execution first appeal before the appellate court, which was dismissed vide order dated 31.05.2008. The petitioner then challenged the said rejection of appeal by way of filing second appeal before this Court, which came to be decided by this Court on 10.8.2011 directing the learned court below to make cross-examination, if necessary, and pass appropriate orders. The appellate court further remanded the matter to the learned trial court. An application under Order 19, Rule 2 CPC was again dismissed by learned trial court on 07.2.2012. The appellate court was pleased to remand the matter vide order dated 15.1.2013. Finally the learned appellate Court in pursuance of the directions passed by this Court vide order dated 24.8.2015 in Rajasthan Board of Muslim Waqf v. M/s. Bikaner Road Transport Services (Civil Misc. Appeal No.934/2013) and three other connected matters decided the issue on 21.02.2018, which is the impugned order, in which, the judgment of Sri Vasihnav Brahman Trust, Jodhpur v. Ramesh Chandra and Anr., reported in 2001(3) SCC page 712 has been relied upon and the learned appellate court has held it in a reasoned order that the cross-examination of affidavit so submitted was necessary. The aforesaid precedent law has been quoted by learned court to derive a point that for the purpose of cross-examination, procedure laid down in CPC was necessary to be followed and summary proceedings could be held by the executing court on count of affidavits, which have been produced. The court below further held that the petitioner's right to object affidavit was secure and he can make his own affidavit and, therefore, the cross-examination on the affidavit of Mohd. Atik was necessary. Counsel for the petitioner has relied upon the judgment in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Ors., reported in 2012 AIR SCW 6177 . The relevant para whereof reads as follows : "31. Affidavit - whether evidence within the meaning of Section 3 of the Evidence Act, 1872: It is a settled legal proposition that an affidavit is evidence within the meaning of section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act'). Affidavits are therefore, included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order 19 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC'). Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan and Ors., AIR 1988 SC 1381 ; and Range Forest Officer v. S.T. Hadimani, AIR 2002 SC 1147 ). 33. In Needle Industries (India) Ltd. and Ors. v. N.I.N.I.H. Ltd. and Ors., AIR 1981 SC 1298 , this Court considered a case under the Indian Companies Act, and observed that, "it is generally unsatisfactory to record a finding involving grave consequences with respect to a person, on the basis of affidavits and documents alone, without asking that person to submit to cross-examination". However, the conduct of the parties may be an important factor, with regard to determining whether they showed their willingness to get the said issue determined on the basis of affidavits, correspondence and other documents, on the basis of which proper and necessary inferences can safely and legitimately be drawn." Counsel for the petitioner has stated that an affidavit is not evidence within the meaning of Section 3 of the Evidence Act, 1872, therefore, if affidavit is to be read as evidence, the learned court below ought to pass appropriate orders regarding the same for cross-examination. Counsel for the petitioner further says that if affidavit is not permitted to be cross-examined, the same is likely to be read against him in one sided evidence.
(3.) Learned counsel for the respondent made a limited submission that mandate of precedent law is correct and, thus, the affidavit will not fall under Section 3 of Evidence Act but certainly could be read to decide the execution.;