JETHMAL JHANWAR Vs. JAGDISH PRASAD AND ORS.

JUDGEMENT

(1.) NONE present for the respondents despite service. The petitioner defendant No. 1 Jethmal has filed this writ petition aggrieved by the order dt. 27.7.2013 in Civil Misc. Case No. 36/2008 - -Jagdish Prasad vs. Jethmal whereby the learned Additional Dist. Judge No. 2, Bikaner admitted the affidavit as evidence of respondent Durga Devi and Asha Devi, who had filed the written statements admitting the plaint averments, without allowing opportunity of cross -examination to the defendant No. 1 who had filed a contrary written statement in the present partition suit and claimed that the suit property in question was his self acquired property and not a joint property and therefore, others are not entitled to any share in the suit property.

(2.) THE learned counsel for the petitioner Mr. D.D. Chitlangi relying upon the decision of Madras High Court in the case of Vijaya vs. Saraswathi, reported in : 2008 (3) CCC 535 (Madras) and the provisions of Sections 137 and 138 of the Evidence Act submitted that without allowing the defendant No. 1 to cross -examine Durga Devi and Asha Devi, the evidence in the form of affidavits of Durga Devi and Asha Devi as Examination -in -Chief could not be taken on record and admitted in evidence. He, therefore, submitted that the impugned order dt. 27.7.2013 of the trial Court deserves to be quashed.

(3.) THE provisions of Section 137 and 138 of the Evidence Act are quoted below for ready reference: