P L D 1988 Karachi 261 (PLP)

This order will govern the disposal of C.M.A. No.6184 of 1984 and C.M. A. 1810 of 1986 whereby the cross‑Examinee Muhammad Naseem Khan and S.M. Naqvi the deponent of supplementary affidavit filed by them in support of application C.M.A. No.5328 of 1984 and 5451 of 1984. The facts briefly to the filing of the above applications arE that the plaintiff filed suit for declaration, possession, paranoia injunction and recovery of Rs.2,72,000 as damages against the defendants 1, 2 and

3. The defendant No.4 was also imp leaded a defendant. The plaintiff filed C.M.A. 541 of 1984 under Order 39, Rules 1 and 2 read with section 151, C.P.C. and C.M.A. No.5328 of 1984 under Order 38 rule 5 read with section 151, C.P. C. for the attachment before judgment of assets of defendants Nos.1, 2 and

3. Along with the application for temporary injunction and attachment before judgment, the plaintiff filed affidavit of Muhammad Naseem and S.M. Naqvi. The defendants 1, 2 and 3 filed C.M.A. 6184 of 1984 and C.M.A. No.1810 of 1986, under Order 19, rules 1 and 2 read witi, section 151, C.P.C. requesting the Court to order the attend rice of the deponents on behalf of the plaintiffs for cross‑examination. The plaintiff filed counter affidavits stating therein that the application are incompetent. Mr. Masoorul Arfin, the learned counsel for the defendants 1, 2 and 3, has contended that even in the case of affidavits filed in support of interlocutory applications under Order 39, rules I and 2 and Order 38, rules 1 and 5 to summon the deponents for cross-examination. Messrs Liaquat Merchant and Naseem Farooqi, learned counsel for the plaintiffs and defendant No.4 on the other hand, have submitted that in case of affidavits filed under Order 8, rule 5 or Order 39, rules I and 2, C.P.C., no Court has any power to summon the deponents for cross‑examination. The short question that arises for decision in these applications is whether, when affidavits are filed in interlocutory applications the Court has the jurisdiction on the application of either party to summon the deponents for the opposite party for cross‑examination. The facts in dispute in a judicial proceeding are decided by the judicial Tribunal by reference to evidence adduced by the contending parties. As defined in Article 2 of Qanun‑e‑Shahadat, Order 1984 (herein after called the Order) evidence means and includes (i) all the statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry, such statements are called oral evidence and (ii) all documents produced for the inspection of the Court, such statements are called documentary evidence. The media, through which the evidence of facts either disputed or required to be proved is conveyed to the mind of a judicial Tribunal, consists of witnesses or documents. Affidavits of deponents are neither oral evidence nor documentary evidence within the meaning of Article 2 of the Order but they are also not expressly excluded by Article I of the Order. That means 'that affidavits can be used as evidence under the provisions of the Order. Affidavit evidence is permitted in rent proceedings, Family Court proceedings, writ petitions, contempt proceedings and certain other proceedings. Generally, affidavit in evidence is not permitted in proceedings of a substantial nature in 'so far as it is repugnant to the principles of natural justice that a Court should act on the statement of a person who has not been examined before it or whose statement has not been tested by cross‑examination. In proceedings regulated by the Code of Civil Procedure, as provided in Order 18 Rule 4 of the ordinary rule is to record evidence in open Court in the presence and under personal supervision of the Judge. The law laid down in section 30 and Order XIX of the Code of Civil Procedure is merely enabling. It enables the Court to order as to read an affidavit as evidence. Order 19, Rule 1, C.P.C., however, provides that: ‑ "Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:" It is further provided in this rule that: "Where it appears to the Court that either party bona fide desires the production of a witness for cross‑examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit. Order 19, Rule 2 read as follows: ‑ (l) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross‑examination 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. Order 38, Rule 5 reads as follows:‑ "

5. Where a defendant may be called upon to furnish security for production of proVerty.‑‑0) Where, at any stage of ‑a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him." Order 39, Rule 1 reads as follows:‑

1. Cases in which temporary injunction may be granted. Where in any suit it is proved by affidavit or otherwise. (a) That any property or dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders." A perusal of Order 39, Rule 5 or Order 39, Rule 1 would show that it permits proof of the required circumstance for the grant of an attachment before judgment or for the grant of temporary injunction by affidavits. Orders 38 and 39 provides expressly than the Court is permitted to dispose of the interlocutory applications by affidavits. In view of the urgency involved in the matter, the regular procedure of examining the plaintiff and his witnesses and the defendant and his witnesses is dispensed with and a Court is given B a special power to decide the matter by affidavits. The scope of enquiry in interlocutory applications is quite limited and the right sour the parties are not decided finally. That being the purpose of giving special power to the Court under Orders 38 and 39 the question of summoning the deponent for cross‑examination at the instance of all party under Order 19, Rules 1 and 2 does not arise at all. A perusal of Order 19, Rules 1 and 2 would show that there s a clear distinction between Rules 1 and

2. Affidavits contemplate in Rule 1 are affidavits taken by way of evidence in order to prove a particular fact or facts. Prove or proof in the sense in which that word is used in Rule 1 means final proof and not prima facie proof. It is advantageous to reproduce the observations of learned author Starker in his book "Law of Evidence" (13th Ed), at page

31. Prima facie evidence only means that there is ground for proceedings, it is C not the same thing as "proof" which comes later when the Court has, to find whether the accused is guilty. Because a Magistrate has found a prima facie case to issue process, it is a fallacy to say that he believes the case to be true in the sense that it is proved (Sher Singh V. Jitendra Nath Sem, (1932) 36 C.W.N. 16: (AIR 1931 Cal. 607). Prima facie evidence is evidence which, if accepted, appears to be sufficient to establish a fact unless rebutted by acceptable evidence' to the contrary. It is not conclusive. Since it is final proof of a fact that is contemplated in Rule 1 it is stated that if the other side desires that the witness, whose affidavit is placed before the Court should be produced for cross-examination, the Court should not accept that evidence given in the form of affidavit. That is why the proviso to Rule 1 provides that an order shall not be made authorising the evidence of such witness to be given by affidavit. But, that is not the case is Rule

2. In Rule 21 a discretion vests in a Court both in the matter of taking evidence by way of affidavits and also in ordering the attendance of those deponents for cross‑examination. The other distinction is that Rule 1 contemplates affidavits in proof of facts whereas Rule 2 contemplates affidavits in proof of or against applications. There are provisions in the Code of Civil Procedure and in several Statutes providing for filing of application claiming substantive relief s. Any relief finally granted in such case can be said to have been given on a particular fact or set of facts proved. To such case, Rule is attracted. But Rule 2 which does not contemplate any such proof of fact or facts may be construed as one applicable only to applications claiming interim relief s like a temporary injunction, attachment before judgment, appointment of receiver, appointment of a guardian ad item and the like. Rules framed by the High Court also contemplate that an interlocutory application filed by a party should be supported by his affidavit. Averments in such an affidavit of a party is taken a prima facie proof of the fact alleged in that application. If that is so why not affidavits of his witnesses for that limited purpose in order to find out as to whether there is or there has been a prima facie proof (not final) of the fact. There is conflict among the various High Courts of India as to the true meaning of the word "application" in this rule. One view is that Rule 2 applies only to interlocutory applications such as one for injunction, attachment before judgment and appointment of receivers and not to substantive applications, while the other view is that the rule applies to both interlocutory and substantive applications. Kanhaiya Lal, J. , Dad Lam Applicant Meghraj Rankaranji non‑applicant, A I R 1954 Nagpur

260. The non‑applicant filed suit against the first applicant for arrears of rent of house or for damages for use and occupation. Later he joined one Hingham as defendant. It appears that the original tenant was Hingham and the present applicant was let in as a sub‑tenant. The case was fixed for final disposal on 9‑10‑1951, but that day was declared holiday and the suit was ordered to be fixed by a public notice on the following day. On that day plaintiff was absent and it was found that he had not paid the publication charges for substituted service on Hingham nor were any witnesses summoned or present. The suit was dismissed. On the following day the plaintiff applied for restoration of the suit and in support of his application filed an affidavit. The application was fixed for hearing on 9‑8‑1952 when the first defendant was absent. He sent a medical certificate but the Judge declined to adjourn the case, holding that the certificate was vague. The suit was restored. It was contended that the Judge erred in using the affidavit as evidence without examining the plaintiff. On merits, it was contended that the Judge ought to have given the defendant a chance to appear and not to refuse to adjourn the case. It was held that Order 19, rule 2 applies to substantive application as well as to interlocutory applications. It was further held that the words "any application" means any application and to say that particular kinds of applications are only meant but not others is not to interpret the terms and but to B.N. Munibasappa v. Gurusidaaraja Desikendra Swami gal legislate on the subject. A I R 1959 My sore

139. In this case the Court was dealing with a substantive application, an application made by the party aggrieved to set aside an ex part order. That application cannot be construed as an interlocutory application or an application for an interim relief pending adjudicating on a final order. Taking into consideration this aspect the learned Judge observed as follows: "Now, what the learned Munsif did in this case was to make an order, the effect of which was that all the facts which had to be proved by the parties in the proceeding before him should be proved by the affidavits instead of their being proved by the evidence produced in the ordinary way. It is clear that an order like that could never be made except by a misapplication of Rule 1, Order 19.11 The Court further observed as follows:‑ "if one examines the provisions of the Code of Civil Procedure, it is seen that it refers to specific instances where the Court is expressly permitted to act upon affidavits. Those are cases like those referred to in Rule 19 of Order 5, Rules 8 to 20 of Order 11, Rule 3 of Order 32, Rules 1 and 5 of Order 38 and Rule 1 of Order 39 of the Code of Civil Procedure. These are cases in which the production of an affidavit without more would enable the Court to act under the provisions I have referred to. Bai Zabu Khenia v. Amardas A I R 1967 Gujrat

214. The facts of the case are that the applicant made an application for obtaining letters of Administration with a copy of will. The, appellant filed objections and on the same day the applicant filed affidavits of himself and his witnesses. The witnesses were cross‑examined by the other side and after cross‑examination was concluded, the arguments were heard. The Civil, Judge held that the applicant had succeeded in establishing the due execution of will and accordingly granted letters of Administration. Bay preferred the appeal before the High Court of Gujrat. The learned counsel for the appellant contended that the Civil Judge was in error in not taking the oral evidence of witnesses in Examination in Chief and proceeding merely on affidavits and this illegality committed by the Civil Judge vitiated the entire trial of the suit. In Kanbi Mavji and others v. Kanli Manji Khan and others AIR 1968 Gujerat 198, in this case it was held that provisions of Order 19, Rules 1 and 2 are not attracted in interlocutory matters and party has no right to cross‑examine the deponent. In Abdul Hamid Khan v. Majidul Hassan and others A I R 1975 Allahabad

398. It was held where the Court for sufficient reasons either of its own accord or on the application of party permit any particular fact or facts to be proved by evidence instead of the witness being examined in Court it will also take into consideration the limitations and safeguard contained in the proviso and in the inter part of sub‑rule (1) of Rule 2 of Order XIX. In Sakalabhaktula Vykunto Rao and others v. Nade Appaleswamy A I R 1978 A.P. 103, held:‑ Order 39, Rule 1, provides expressly that the Court is permitted to dispose of the interlocutory application by affidavits. In view of the urgency involved in the matter, the regular procedure of examining the petitioner and his witnesses and respondent and his witnesses is dispensed with and the Court is given a special power to decide the matter by affidavits. Further, the scope of enquiry is quite limited and the rights of parties are not decided finally. That being the purpose of giving special power to the Court under 0. 39 R.1,11 Under the English Law the rule ordinarily applies to interlocutory applications. Interlocutory applications are those which do not decide the rights of the parties. (Gilbert v. Endeam, (1878). 9 Ch. D. 259). In Messrs Barlas Brother (Karachi) & Co., v. Messrs Yangtze London Limited P L D 1959 Kar. 423, a Division Bench of High Court of West Pakistan Karachi Bench held as follows:‑ "The applicants had applied that they be allowed to cross-examine the deponent. The Court reached the conclusion that they should be allowed to cross‑examine. It, however, imposed the burden of the expense of the journey of the witness from England and back on the appellants. There was no good ground for the appellants being burdened with this expense when it was under the law the duty of the respondents to prove the existence of an agreement. If the cross‑examination was required bona fide, if there was a possibility of the cross‑examination providing material for the proper decision of the case, the affidavit could not, on the principle embodied in rule 1 of Order XIX, C.P.C. be regarded as evidence of the fact stated therein. Therefore, even if we were to regard the case as covered by the provisions of the Civil Procedure Code relating to affidavits the virtual refusal of the Court to permit cross-examination would render the affidavit inadmissible in proof of facts. Rule 1 of order XIX makes it clear that whenever the party desires to cross‑examine any witness bona ride the request must be allowed. Rule 2 also gives discretion to the Court to permit cross‑examination which discretion it would exercise to advance the cause of justice and cross‑examination would be disallowed only where it could not help in the determination of the matters before Court and the object was only to delay proceedings." In Abdul Hameed v. Malik Karam Dad P L D 1966 Lah.

16. A Division Bench of the erstwhile West Pakistan, Lahore Bench held:‑ " In proceedings which are not interlocutory for cross-examination." In the matter of Mr. Justice Shoukat Ali P L D 1971 S C 585, the Honorable Supreme Court held as follows:‑ "Learned counsel for the respondent does not challenge the correctness of the principles enunciated in this case, but relies upon another decision of the Karachi Bench of the West Pakistan Higo Court in the case of Iftikhar Ahmed v. University of Karachi P L D 1957 Kar. 635 to show that the affidavits cannot be executed from the record. This decision does not held the learned counsel. It does not laid down that the deponent of an affidavit can refuse to be cross‑examined when the other party bona fide desires to cross‑examine the witness. The proviso to Order XIX, Rule I of the Court of Civil Procedure, clearly provides that when any party bona fide desires the production of a witness, who has given evidence by affidavit, for cross‑examination, the Court may direct the production of such a witness. In the Karachi case all that was held was that where the production is not sought bona fide, as in that case, the Court may refuse to summon the witness. The Principle of Law, however, has, in our view, been correctly laid down in the Lahore decision that in proceedings which are not of an interlocutory nature the admission of affidavit evidence 'is subject to the proviso (which is an important safeguard for the truth) that in case the opposite party controverts the allegations by filing a counter‑affidavit or demands the attendance of the deponent for his cross-examination, the party relying on the affidavit must produce him in the witness‑box and if the deponent fails to submit to the cross‑examination, the affidavit shall lose all its force as a probative piece of evidence in the case and cannot be acted upon'. We fully endorse this view and rule that in the present case too by withholding these deponents the respondent has rendered the affidavits unworthy of any credence." In the case of Muhammad Ismail Ali Charan v. Pakpor Ceramics Ltd. , P L D 1973 Karachi 491 Mr. Dorab Patel (as he then was) held as follows: ‑ "However, as I have said earlier the petitioner has also filed an application under Order XIX, Rule 2, C.P.C., for the cross‑examination of the respondents' directors and Mr. Pirzada hoped to improve his case through the cross‑examination in Barlas Bros. (Karachi) & Co. v. Yangtaz (London) Ltd. PLD 1959 Kar. 423 Order XIX, Rule 2 also gives discretion to the Court to permit cross‑examination which discretion it would exercise to advance the cause of justice and cross‑examination would be disallowed only where it could not help in the determination of the matters before the Court. It is also contrary to the practice of this Court to permit cross‑examination in interlocutory matters save in exceptional cases. Therefore, I wanted to know on what grounds learned counsel wanted to cross‑examine the respondent's directors. He only submitted that the Court had not discretion to reject an application under Order XIX, Rule 2, 1 cannot accept this submission in view of the observations quoted. Mr. Pirzada then submitted that the affidavits of the respondents directors would not be admissible in evidence unless he was allowed to cross‑examine them, and in this connection he relied on the further observations of the Division Bench in the case cited at

439. The learned Judge have observed: 'if there was a possibility of the cross‑examination providing material for the proper decision of the case, the affidavit could not on the principle embodied in Rule 1, Order XIX, be regarded as evidence of the facts stated therein... Mr. Pirzada naturally relied on these observations but they had reference to the final decision of the case and not to an order on an interlocutory application, therefore, the judgment is distinguishable on the facts and does not help the practitioner's case. On the other hand, in the National Bank's case, Sardar lqbal J. , has pointed out that a petition for the appointment of a provisional liquidator had to be decided on affidavits. I respectfully agree with this view, which is in accord with the practice of ‑this Court. 1, therefore, dismiss the, petitioner's application under Order XIX, Rule 2, C.P.C., and as the respondent has filed a similar application, this is also dismissed." The decision of the Honourable Supreme Covert laid down in the above case is binding on the Courts. Article 189 of "the Constitution of Islamic Republic of Pakistan lays down as under:‑

189. Decisions of Supreme Court binding on other Courts. Any decision 5T the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. The Chief Court of Sind framed rules for regulation of its procedure on the original side. The rules relevant for my purpose are rules 74‑75 which I reproduce below:‑ 174. (1) Except where otherwise provides by these rules or by any law for the time being in force, an interlocutory application: ‑ (a) shall contain only one prayer or one series of alternative prayers of the same kind; (b)shall not contain any argumentative matter; (c)shall be supported by affidavits stating clearly the grounds and the facts on which the application is based; (d)when filed in as suit or matter valued at Rs.50 or less, shall specify the fact that it is so valued by a note to that effect at the top of the left hand margin. (2)Every application not in accordance with this rule shall be returned for amendment, "75. (1) Unless the Court in its discretion extends or abridges the time, counter‑affidavits must be filed not less than 4 days before the hearing. Not more than one affidavit in rejoinder may be filed without the leave of the Court and that not less than 2 days before the hearing, unless the Court in its discretion extends or abridges the time. Such affidavit shall be confined strictly to matter of reply. (3) No counter‑affidavit and no affidavit in rejoinder shall be filed unless a copy thereof and copies of accompaniments thereto, if any, have been previously served on such party or his Advocate, if any. Parties or their Advocates served with such copies shall give a receipt therefore. Copies shall be authenticated by the signatures of the parties or their Advocates if any, on each page at the bottom of the left hand margin. (4) Except. by leave of the Court, no affidavit in support of an application, no counter‑affidavit and no affidavit in rejoinder beyond those which are filed and copies of which with accompaniments thereto are served in time as aforesaid shall be used at the hearing, or allowed on taxation. Where any affidavit, counter affidavit to affidavit in rejoinder is not filed and served as aforesaid, it shall use filed separately in the record of the case until leave of the Court has been obtained under sub‑rules. Learned counsel for the defendants 1, 2 and 3 submits that as rules allow an affidavit to be filed along with application it means that facts stated therein can be proved by such affidavits. I am unable to agree that the facts stated in such affidavits can prove tact s against defendants. It appears to me that this intention of Rule 74(c) when it directs filing the affidavit is only this that without filing the affidavit and without compliance with the requirements of Rule 74 an application shall be returned for amendment. Rule 75 provide‑, filing of counter‑affidavit and affidavit in rejoinder. These rules do not say that this affidavit shall be proof of such facts as, is provided under Order XIX, Rules 1 and 2, C.P.C. I am of tilt, view that Order XIX has no application to processing under order 38, 39 and

40. Interlocutory proceedings like these for attachment before judgment, for issue of temporary in)unction. and application of receiver are essentially summary and the Court conceive with them snout not go into protracted procedure. E In case the Court finds after reading the affidavits and the documents on record, that no conclusion can be arrived at the Court should abstain from interfering and from passing any order pending the disposal of the suit. This position emerges from the fact that it is upon the applicant for attachment before judgment, for issue of temporary relief and for appointment of receiver that the burden lies to prove his case. In consideration of above circumstances, I am of the view that it is a fit case it which application for summoning deponents for cross‑examination should be refused. accordingly reject the application of the defendants 1, 2 and 3, under Order XIX, Rule 2, C.P. C. Now, the case is adjourned‑‑for hearing of applications to a date in office. There will be no ‑order as to costs. M. B. A. I B‑54/ K Order accordingly.