YAQOOB vs WAZIR ALI
This matter concerns a petition for leave to appeal against an order passed by the High Court, which directed the petitioner to appear for cross-examination regarding the contents of a counter-affidavit he had filed. The respondent had initiated a suit for specific performance and subsequently filed an application for the appointment of a receiver regarding a cash deposit. The petitioner, a defendant in the suit, opposed this application via a counter-affidavit. The respondent then successfully moved the High Court under Order XIX, Rule 2 of the Code of Civil Procedure 1908, to summon the petitioner for cross-examination on that affidavit. The core legal question was whether the High Court possessed the authority to compel the petitioner's attendance for cross-examination on his affidavit. The Supreme Court dismissed the petition, holding that the High Court's order was legally sound. The Court affirmed that once a party files an affidavit in court proceedings, they are subject to the court's power under Order XIX, Rule 2(2) of the Code of Civil Procedure 1908 to be summoned for cross-examination.
- Can a court order the cross-examination of a deponent who has filed a counter-affidavit in response to an application for the appointment of a receiver?
- Does the court have the power under Order XIX Rule 2 of the Code of Civil Procedure 1908 to compel a party to attend for cross-examination on their affidavit?
- Order XL Rule 2, Code of Civil Procedure 1908
- Order XIX Rule 2, Code of Civil Procedure 1908
- Order XIX Rule 2(2), Code of Civil Procedure 1908
ORDER
S.A. NUSRAT, J.-- The respondent filed a suit for specific performance on the basis of certain documents against several defendants, including the petitioner. The petitioner filed his written statement in the suit and pleaded that he had no concern whatsoever with the transaction in question. The plaintiff-respondent filed an application in the suit under Order XL, Rule 2, C.P.C. For appointment of Receiver in respect of cash deposit in the sum of Rs.15,00,000 already entrusted to the petitioner. The application was opposed by the petitioner by filing his counter-affidavit. The plaintiff /respondent thereupon made an application under Order XIX, Rule 2, C.P.C. For summoning the petitioner for cross-examination in relation to the contents of his counter-affidavit. This application was allowed by the learned High Court as per impugned order and the petitioner was directed to attend the Court for the purpose of cross-examination on his affidavit.
2. The petitioner seeks leave to appeal from the above-mentioned order of the learned High Court, inter alia, on the ground that he was not a party to the documents constituting the basis of the respondent's suit. Be that as it may the petitioner is a party to the suit, had filed his written statement and had further contested the application for appointment of receiver by filing his counter-affidavit. In the circumstances the petitioner could not avoid the attendance in the Court for the purpose of the cross-examination on his affidavit as provided by sub-rule (2) of Order XIX of the Code of Civil Procedure upon an order passed by the Court in this behalf. The power of the Court to pass an order under sub-rule (2) of Rule 2 of Order XIX, C.P.C. Is undeniable. The petition is simply misconceived and is dismissed accordingly.