IMPORTANT POINT
There cannot be any absolute bar for a party in a suit to be examined as a witness on behalf of another.

ORDER

K.R. Mohapatra, J.—Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.

2. Petitioner, in this CMP seeks to assail the order dated 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.

3.1 Challenging the said order under Annexure-6, Mr. Nayak, learned counsel for the petitioner submits that Order XVI Rule 21 CPC, enables a party to the suit to examine another party of the said suit as witness on his behalf. Learned Civil Judge failed to appreciate that defendant No.1 is not going to lead evidence on her behalf. Instead, she is intended to be examined on behalf of defendant No.7, which is permissible under law. Even otherwise, she is a vital witness to the suit to establish the claim of defendant No.7. Thus, learned Civil Judge should not have rejected the evidence in affidavit of defendant No.7. He relied upon the ratio in the case of Braja Mohan Patra Vs. Ananta Charan Patra and others, reported in AIR 2003 Ori 209 as well as the case of V.K. Periaswamy @ Perianna Gounder Vs. D.Rajan, reported in AIR 2001 Madras 410 in support of his case.

3.2 In order to examine the correctness of the submission made by Mr. Nayak, learned counsel, it would be profitable to discuss the relevant provisions of the Code of Civil Procedure, 1908 with regard to examination of witness.

3.3 Sub-rule (1) of Order-XVI Rule 1 CPC, provides that the parties shall present in Court the list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court.

3.4 Sub-rule (3) thereto provides that the Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in Sub-rule (1).

3.5 Rule-1-A provides that subject to the provisions of Sub-rule (3) of Rule 1, any party to the suit, without applying for summons under Rule 1, may bring any witness to give evidence or to produce documents. Further, the Court is empowered under Order V Rule 3 to direct personal appearance of a party to the suit.

4. Thus, it is clear from the aforesaid provisions that appearance of a party to the suit to lead evidence or produce documents is not prohibited.. In the case of Sri Awadh Kishore Singh and Another v. Sri Brij Bihari Singh and Others reported in AIR 1993 Patna 122, it is held as under:-

“16. Now I proceed to consider the merit of the impugned order. By the impugned order, the plaintiffs have been debarred from examining defendant No. 2 as a witness on their behalf, as no order was passed by trial Court for acceptance of written statement filed by this defendant. No provision could be brought to our notice on behalf of any of the parties to show that a party is