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Abdul Hasan v. Sri Ilyas And Othes - WRIT - C No. 37354 of 2006 [2006] RD-AH 11680 (18 July 2006)


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Heard learned counsel for the petitioner.

Petitioner's application for cross-examining the respondents' witness on his affidavit under Order XIX Rule 2 C.P.C. was dismissed by the trial court as well as by the revisional court. The petitioner-plaintiff had moved this application in the proceedings pending before the trial court for setting aside the exparte decree under Order IX Rule 13 C.P.C. The courts below have rejected the petitioner's prayer on the ground that such proceedings under Order IX Rule 13 C.P.C. are summary proceedings and it would not be proper to afford opportunity to the petitioner for cross-examining respondents' witness whose affidavit was on record. There is no dispute that the proceedings under Order IX Rule 13 C.P.C. are summary proceedings and they are to be decided on affidavits only unless and until the party particularly desires to lead oral evidence of the witness. Here the parties have filed their affidavits and the matter has to be decided by the court below on those affidavits. There was absolutely no good reason for permitting cross-examination of respondents' witness by the petitioner and in that view of the matter petitioner's prayer was rejected by the courts below by the impugned orders. I do not find any infirmity in those orders and the petition is accordingly dismissed.

It is, however, observed that since this restoration proceedings under Order IX Rule 13 C.P.C. is pending disposal for the last 12 years, the trial court is directed to take it up expeditiously and decide it maximum  within a period of one month from the date of filing  certified copy of this order in the court. In case the restoration application is allowed and the suit is restored, the suit shall also be decided within a maximum period of six months thereafter.




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