ACHYUTA MOHARANA Vs. NABAKISHORE MOHARANA AND ORS.

JUDGEMENT

(1.) Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.

(2.) Petitioner, in this CMP seeks to assail the order dtd. 27/11/2019 (Annexure-6) passed by learned Civil Judge (Senior Division), Bhadrak in CS No. 129 of 2003 (I), whereby he rejected the evidence in affidavit of Smt. Jasoda Sutar (defendant No.1 in the suit) filed on behalf of defendant No.7-Achyutananda Maharana (petitioner herein).

(3.) Mr. Nayak, learned counsel for the petitioner submits that in C.S.No.1201 of 2003(I) filed for partition, Smt. Jasoda Sutar has been arrayed as defendant No.1 and the petitioner herein has been arrayed as defendant No.7. Said Smt. Jasoda Sutar has been set ex parte as she neither appeared after receiving the summons nor filed her written statement. In course of trial, defendant No.7 (petitioner herein) filed the evidence in affidavit of defendant No. 1 under Order XVIII Rule 4 CPC intending to examine her as a witness on his behalf. The plaintiff objected to acceptance of the said affidavit stating that since defendant No.1 has been set ex parte and intends to support the case of the defendant No.7, without filing her written statement, she should not be permitted to be a witness and her evidence in affidavit should not be accepted. Learned trial Court considering the objection of the plaintiff rejected the said affidavit. Hence, the CMP has been filed.