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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 1374 OF 2022

Ratnaprava Behera

….

Petitioner

Mr. Arijeet Mishra, Advocate

-versus-

Kaukab Parween and others

….

Opp. Parties

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

20.01.2023

01.

1.

This matter is taken up through hybrid mode.

2.

Order dated 6^th August, 2022 (Annexure-4) passed by

learned Senior Civil Judge, Keonjhar in C.S. No.130 of 2012 is

under challenge in this CMP, whereby an application filed by the

Defendant No.22-Petitioner to reject the evidence in affidavit of

Md. Mazaffer (P.W.1), has been rejected.

3.

Mr. Mishra, learned counsel for the Petitioner submits

that on commencement of trial, P.W.1 filed his evidence in

affidavit making certain statements at Paragraphs-3, 5 and 10,

which are beyond pleadings. Hence, relying upon the circular

dated 13^th May, 2007 issued by this Court, Defendant No.22-

Petitioner made an application to discard the statements made in

Paragraphs-3, 5 and 10. Learned trial Court relying upon the

decision of Brij Prakash Gupta –v- Aswini Kumar in CM(M)

650 of 2019 and CM/Appeal. 19603 of 2019 decided on 6^th

February, 2020 held that the objection raised can be taken into

consideration at the time of final adjudication of the suit.

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4.

Mr. Mishra, learned counsel for the Petitioner submits

that as per the circular of this Court dated 13^th May, 2007, which

was issued pursuant to the resolution passed in District Judges

Conference, learned trial Court was required to scrutinize the

evidence in affidavit before serving copy on the other side and if

the Court is of the considered opinion that the statement in the

said affidavit is beyond pleadings, then heavy cost should be

imposed on the party filing the affidavit. Learned trial Court

while adjudicating the matter failed to adhere to the said

instruction issued by this Court. Hence, this impugned order

under Annexure-4 is not sustainable.

5.

Upon hearing learned counsel for the Petitioner and on

perusal of the record, it appears that evidence in affidavit of

P.W.1 was filed serving copy thereof on the adversary.

Defendant No.22-Petitioner raised objection to the effect that

averments made in Paragraphs-3,5 and 10 are beyond pleadings.

After amendment of the Civil Procedure Code, order XVIII Rule

4 C.P.C. enables a party to file its evidence in shape of an

affidavit. It should be in-consonance with the pleading. If the

statement is beyond the pleadings, the adverse party is at liberty

to file objection to the same. If such an objection is raised that

should be recorded in the evidence itself, to be considered at the

time of hearing.

6.

In view of the above, the Defendant No.22-Petitioner is at

liberty to raise objection to the statements, which according to

him are beyond pleadings. Verification of the correctness of the

objection at the stage of recording evidence will be a futile

exercise and it will delay disposal of the suit.

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7.

In that view of the matter, this Court is of the considered

opinion that objection, if any, raised to a particular statement

made in evidence in affidavit shall be taken into consideration at

the time of hearing of the suit, as observed by learned trial

Court. Thus, I find no infirmity in the impugned order under

Annexure-4.

8.

Accordingly, the CMP being devoid of any merit stands

dismissed.

Urgent certified copy of this order be granted on proper

application.

(K.R. Mohapatra)

ms

Judge