FULBASIA Vs. CHHATTISGARH STATE GRAMIN BANK

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India is directed against the order dtd. 19/7/2022 passed by the 2nd Civil Judge Class-I, Surajpur in Succession Case No.15/2014, whereby the trial Court has allowed the application filed by respondents No.3 and 4 for submitting new / second affidavit evidence under Order 18 Rule 4 of the Code of Civil Procedure.

(2.) Brief facts of the case are that the petitioner / plaintiff filed an application under Sec. 372 of the Indian Succession Act, in which issues were framed on 6/10/2016 and on 11/2/2020 respondents No.3 and 4 have filed first affidavit evidence of Jageshwar Singh along with other witness Thakur Prasad, whereas on 20/6/2022 respondents No.3 and 4 moved an application for filing second affidavit evidence of Jageshwar Singh under Order 18 Rule 4 of the CPC. Though there is no provision in law for filing of such second affidavit, but by the impugned order, the trial Court has allowed the application and also permitted respondents No.3 and 4 to withdraw first affidavit evidence of Jageshwar Singh. Hence, this writ petition.

(3.) Mr.Surfaraj Khan, learned counsel for the petitioner, would submit that the procedure adopted by the trial Court is erroneous as there is no concept of withdrawing first affidavit evidence recorded before the Court (examination-in-chief) and such an issue came up before the Bombay High Court in the matter of Banganga Cooperative Housing Society Ltd. and Ors. v. Vasanti Gajanan Nerukar and others reported in 2015 (5) Bom CR 813, in which it has been categorically held that 2 nd affidavit evidence under Order 18 Rule 4 of the CPC is not permissible under the law. So, he prays to quash the impugned order.