Basireddy Rajeswara Reddy Vs Kanchana Sreedevi

The present Civil Revision Petition has been filed against the order dated 06.01.2026 passed in IA No.1246 of 2025 in IA No.550 of 2025 in OS No.13 of 2025 by the learned II Additional District Judge, Kadapa, at Proddatur.

¶46

The respondent herein/plaintiff filed O.S. No.13 of 2025 on the file of the learned II Additional District Judge, Kadapa, at Proddatur, seeking the following reliefs.

¶47

SRK, J CRP No.212 of 2026

¶48

4

¶49

“a) direct the defendant in furtherance of agreement of sale, dated 24.04.2020 for receiving balance of sale consideration and for execution of regular registered sale deed in favour of plaintiff pertaining to suit schedule properties items Nos.1 to 4 under specific performance, on failure of the defendant, order to execute the same under due process of law.

¶50

b) directing the defendant in consonance of registered sale deed stated above pertaining to suit schedule properties items Nos.1 to 4 to deliver its possession to the plaintiff free from all disputes and loans, on failure of the defendant, order to do the same under due process of law.

¶51

c) granting permanent injunction restraining the defendant, his agents, assignees, successors and his men from in any way alienating the schedule properties items Nos.1 to 4 to third parties under any circumstances.”

¶52

Pending the suit, the respondent/plaintiff filed IA No.550 of 2025, under Order XXXIX Rules 1 and 2 CPC, for grant of temporary injunction restraining the petitioner herein/defendant from in any way alienating the petition schedule property to third parties pending disposal of the suit. Along with the said application, the respondent also filed 3^rd party affidavits of Vaddi Pamuleti and Gosangi Venkata Subbaiah. It is the case of the petitioner that the said 3^rd party affidavits are without mentioning any Door numbers and Aadhar Cards and the signatures in the said two 3^rd party affidavits appear to be signed by one person causing rank forgery of alleged two 3^rd party affidavits. In

¶53

SRK, J CRP No.212 of 2026

¶54

5

¶55

connection with that, the petitioner herein/defendant filed IA No.1246 of 2025 in IA No.550 of 2025 in OS No.13 of 2025 seeking to summon the deponents of said two 3^rd party affidavits in order to cross-examine them and to produce their Aadhar Cards.

¶56

The respondent herein/plaintiff filed counter affidavit in the said petition, denying the petition averments and contending that the petitioner/defendant filed the present application with an intention to drag on the matter as much as possible, and recording of evidence of third parties does not arise.

¶57

By the impugned Order dated 06.01.2026, the learned II Additional District Judge, Kadapa at Proddatur, dismissed the said application on the ground that Order XXXIX Rules 1 and 2 CPC is a summary procedure and recording of evidence of deponents of two 3^rd party affidavits does not arise on a mere suspicion that the signatures of deponents of two 3^rd party affidavits are forged one. Aggrieved by the said order, the present Civil Revision Petition has been filed.

¶58

Learned counsel for the petitioner submits that the signatures on two 3^rd party affidavits are forged and there is discrepancy with regard to Aadhar Cards and Door numbers, hence the trial Court ought to have allowed the petition filed for cross-examination of the said deponents. In support of his contention, he relied upon a decision of this Court reported in

¶59

SRK, J CRP No.212 of 2026

¶60

6

¶61

Nadella Estate Private limited v. Prema Ravindranath (CRP Nos.2548 of 2014 and batch, dated 19.11.2014).

¶62

On the other hand, learned counsel for the respondent submits that the impugned order passed by the learned trial Judge is just and on correct lines and there are no sufficient reasons to interfere with the same. He further submits that 3^rd party affidavits filed in support of the petition are only statements of fact, which by themselves is not an evidence, hence the defendant is not entitled to file an application seeking permission to cross-examine the deponents. He submits that the applicant, if he chooses, has to prove such statement of fact by letting in evidence and such evidence may be by proof affidavit, as contemplated under Order XIX Rules 1 and 2 CPC, and only when such proof affidavit is filed, the other side can seek for cross-examination of the deponent of such proof affidavit, and otherwise, it cannot be done.

¶63

Heard learned counsel for the petitioner/defendant and learned counsel for the respondent/plaintiff. Perused the record.

¶64

For proper appreciation of the issue involved in this case, the relevant provision under Order XIX Rules 1 and 2 CPC are extracted hereunder:

¶65

“ORDER XIX AFFIDAVITS 1 . Power to order any point to be proved by affidavit: 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

¶66

SRK, J CRP No.212 of 2026

¶67

7

¶68

any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

¶69

Provided 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 authorizing the evidence of such witness to be given by affidavit.

¶70

2. Power to order attendance of deponent for crossexamination: (1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for crossexamination of the deponent.

¶71

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.”

¶72

While considering the scope of Order XIX Rule 1 CPC, it is seen that any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit. Rule 2 deals with the power of the Court to order attendance of such deponent for cross-examination. A careful perusal of the said provision would show that evidence may be given by affidavit upon an application and such affidavit is the proof affidavit and has to be treated as examination-in-chief, so that such deponent of the proof affidavit may be ordered by the Court to be present for cross-examination by the other side.

¶73

In other words, an affidavit referred to under Order XIX Rule 2 CPC is certainly not the affidavit filed in support of the

¶74

SRK, J CRP No.212 of 2026

¶75

8

¶76

application, but it means only the proof affidavit of the witness, who is produced by the plaintiff/defendant in support of their respective claim.

¶77

At this juncture, it is useful to refer to the decision of the Hon'ble Apex Court reported in Sudha Devi v. M.P. Narayanan¹ , wherein it was observed that affidavits are not included in the definition of 'evidence' in Section 3 of the Indian Evidence Act and can be used as evidence only, if for sufficient reason, the Court passes an order under Order XIX, Rules 1 or 2 of the Code of Civil Procedure.

¶78

In the decision reported in 2013 (1) MWN (Civil) 425, P.N. Karuppa Gounder v. Karuppayal and others, it was held that in the absence of any evidence given in the form of an Affidavit filed in support of an application, it is not in the nature of evidence and the Court has no discretion to permit the cross-examination of the deponent at the instance of either party.

¶79

Order XIX Rule 1 of the Code of Civil Procedure deals with the power of the Court to direct any party to prove any particular fact by affidavit or affidavit of any witness may be read at the hearing and if the party desires the production of a witness for cross-examination and when such witness can be produced, the court should not allow the party to give evidence by affidavit. Order XIX Rule 2 deals with the power of the court to order the attendance for cross-examination of the deponent who gave evidence by affidavit upon any application. A reading of Order

¶80

1 (1988) 3 Supreme Court Cases 366

¶81

SRK, J CRP No.212 of 2026

¶82

9

¶83

XIX Rule 2 of the Code of Civil Procedure makes it clear that when any evidence is given by affidavit, the Court may. at the instance of either party, order the attendance for cross examination of the deponent. Therefore, in the absence of any evidence given in the form of affidavit filed in support of an application, it is not in the nature of evidence and the Court has no discretion to permit the cross-examination of the deponent at the instance of either party.

¶84

In the above decisions, it was clearly stated that the affidavit filed in support of the petition is not an evidence. In such circumstances, the petitioner/defendant is not entitled to file an application seeking permission to cross-examine the deponent, since the affidavit filed in support of the petition is not an evidence as contemplated under Section 3 of the Indian Evidence Act. Therefore, 3^rd party affidavits filed in support of the application are only statements of fact which itself is not an evidence. The applicant, if he chooses, has to prove such statement of fact by letting in evidence and such evidence may be by proof affidavit, as contemplated under Order XIX Rules 1 & 2 CPC. Only when such proof affidavit is filed, the other side can seek for crossexamination of the deponent of such proof affidavit. Otherwise, it cannot be done.

¶85

Considering all the above said facts and circumstances and by following the decisions referred to supra, I am of the view that the trial Court has rightly dismissed IA No.1246 of 2025 and I see no reasons to interfere with the same.

¶86

SRK, J CRP No.212 of 2026

¶87

10

¶88

However, the above named deponents of 3^rd party affidavits be called as witnesses in the course of inquiry in Order XXXIX Rule 1 CPC application and examined-in-chief and thereafter the opposite party is entitled to cross-examine them. .

¶89