LODHA, J. - (1.) THIS revision application is directed against an order of District Judge, Bikaner, dated 18-7-69, by which the plaintiff-petitioner's prayer for cross-examination of the deponents on the affidavits, filed on behalf of the defendants-non-petitioners in connection with proceedings for appointment of a receiver, was disallowed.
(2.) THE petitioner Sultan Khan filed a suit against Ibrahimkhan and Brij-Mohan for dissolution of partnership and rendition of accounts in connection with the transport business alleged to have been carried on by the parties in partnership. Along with the plaint, he also filed an application for appointment of a receiver and on this application the learned District Judge, Bikaner, made an order on 31-5-69 for appointment of an interim receiver and notice was given to the opposite parties to show cause why the order of the appointment of receiver be not made final. On receipt of the notice the defendants filed their reply on 11-7-69 and in support of their reply they also submitted the affidavits of both the defendants and one Umar Khan. By an application dated 12-7-69 the petitioner-plaintiff asked for cross-examination of the persons who had filed affidavits on behalf of the defendants and himself filed a counter affidavit on 17-6-69. THE learned District Judge disallowed the petitioner's application. He held that the provisions of order 19 rule 2, G. P. C. , were not mandatory and it was in the discretion of the court to allow or not to allow cross-examination in the particular circumstances of the case. He further held that the petitioner had already filed a counter-affidavit and no useful purpose would be served by permitting cross-examination. Aggrieved by the order of the learned District Judge the petitioner has filed this revision application. The only point which has been argued in support of this revision application is that the learned District Judge was bound to grant permission to the petitioner to cross-examine the deponents on the affidavits. He has urged that the word 'may' used in O. 19, r. 2, C. P. C. , must be construed as 'shall' and the court had no discretion in the matter. In order to appreciate the contention raised on behalf of the petitioner it would be proper to reproduce here Or. 19, r. 2, C. P. C. , " (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross exami-nation of the deponent. (2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs. " At one stage learned counsel argued that the petitioner has a right to cross-examine the deponents on their affidavits on the basis of the rules of natural justice. However, when faced with the observations of the their Lordships of the Supreme Court in State of Jammu and Kashmir vs. Bakshi Gulam Mohammed (l) learned counsel had no option, but to give up this branch of his argument. Their Lordships of the Supreme Court were pleased to observe.- "the next point is as to the right of cross-exanination. This claim was first based on the rules of natural justice. It was said that these rules require that Bakshi Gulam Mohammed should have been given a right to cross-examine all those persons who had sworn affidavits supporting the allegations against him. We are not aware of any such rule of natural justice. No authority has been cited in support of it. " After referring to sec. 10 of the Jammu & Kashmir Commission Enquiry Act No 32 of 1962 their Lordships held that "that section gives a right to be heard, but only a restricted right of cross-examination and that the latter right is confined only to the witnesses called to depose against the person demanding the right. " It was observed that the Act did not contemplate a right of hearing to include a right to cross-examine. In this view of the matter their Lordships came to the conclusion that no case had been made out by Bakshi Gulam Mohammed that the rules of natural justice require that he should have a right to cross-examine all the persons who had sworn affidavits supporting the allegation made against him. In view of the aforesaid observations of their Lordships I do not think it worth-while to pursue this point any further. The question, therefore, is whether on a correct interpretation of Or. 19. r. 2, C. P. C, the learned District Judge was bound to permit the petitioner to cross-examine the deponents of the affidavits produced by the defendants. It may be pertinent here to point out that O. 19, r. 2 C. P. C. , is similar to Or. 36, R. 1 of the Rules of the Supreme Court 1883 in England, which reads as under: - "1. Evidence by affidavit on motion, petition or summons.- Upon any motion, petition, or summons, evidence may be given by affidavit but, the Court or a Judge may, on the application of either party, order the attendance for cross examination of the person making any such affidavit and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence unless by the special leave of the Court or a Judge. " It would be noticed that the words in English rule are "upon any motion, petition or summons" instead of "upon any application" as used in order 19 Rule 2, C P. C. The latter expression in my opinion, is comprehensive enough to include motion, petition, etc. and all kinds of interlocutory or summary applications. While interpreting O. 38 R. 1 of the Rules of Supreme Court 1883 it was observed in Trinided vs. Brown (2) that there is no obligation on the Court to make an order for cross-examination upon an affidavit filed on a motion. In England attendance of an affidavit-witness for cross-examination may be secured by notice under Or. 38, R. 28 or by subpoena under Or. 37, R. 20. The words used in Or. 38, R. 1 of the Supreme Court Rules, referred to above, are "the Court or a Judge may, on the application of either party, order attendance for cross-examination of the person making any such affidavit". A close examination of O. 19, R. 2, C. P. C. , would show that there is no difference between the English Rule and this Rule on this point. It would, therefore, be reasonable to hold that the court has a discretion to order attendance for cross-examination under Or. 19, r. 2, C. P. C. , and there is no obligation on it to make an order for cross-examination upon the affidavits tendered by the parties. The submission of the learned counsel for the petitioner that the word "may" has been used in this rule as a word of compulsion, is, in my opinion, devoid of substance. Ordinarily, the word 'may' is not a word of compulsion. It is an enabling word and only confers capacity. , power or authority and implies a discretion. In certain circumstances, no doubt, the enabling word 'may' has been construed as compulsory but the learned counsels for the petitioner has failed to point out any such circumstances to show that the* Legislature used this word in this Rule to mean compulsion. On the other hand if the provision contained in O. 19, r. 2. CPC, is taken to mean compulsion and as a rule cross-examination is allowed in interlocutory proceedings, there would be inveria-bly considerable delay in the disposal of the same and it is very likely that in a number of cases the delay involved may defeat the object of the application. It is usual, however, to file counter affidavits by the opposite party in rebutting the allegations made in affidavits of the party moving the application. These considerations lean in favour of giving the word 'may' its ordinary meaning in this Rule that is implying a discretion. I am, therefore, of opinion that under Or. 19, R. 2, C. P. C. it is in the discretion of the court to order the attendance of the deponents for their cross-examination on the affidavits filed by them. No circumstances have been disclosed in the application filed by the petitioner in the lower court for permission to cross-examine the deponents as to how and why he considers cross-examination necessary, and none have been pointed even before me by the learned counsel for the petitioner to show that the lower court had not exercised its discretion properly and judiciously in not allowing the cross-examination sought for. To be more precise, no argument was advanced in this respect. As a result of the foregoing discussion, this revision application has no force and is hereby dismissed. In the circumstances of the case I leave the parties to bear their own costs. .;