Location: High Court of Orissa, Cuttack

Date: 29-Sep-2025 12:43:03

IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No.951 of 2025

(In the matter of an application under Article 227 of the Constitution of

India)

Ashalata Nayak …. Petitioner

-versus-

Parikhita Swain and others …. Opposite Parties

Advocate(s) appeared in this case:-

For Petitioner : Mr. A.P. Bose, Advocate

For Opposite Parties : Mr. A.C. Mohapatra, Advocate

For O.P. No.1

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

23^rd September 2025

B.P. Routray, J.

1. Heard Mr. A.P. Bose, learned Advocate for the Petitioner and

Mr. A.C. Mohapatra, learned Advocate for Opposite Party No.1.

2. Present Petitioner is Defendant No.17 in C.S. No.265 of 2004, who has been set exparte. She challenges the order dated 17.05.2025 passed by the learned Senior Civil Judge (LR & LTV), Kendrapara, wherein the prayer of Defendant No.25 to adduce Defendant No.17 as his witness and to examine her at the first instance in terms of Rule 3-A

of Order 18, C.P.C. has been refused.

Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:43:03

3. It is submitted on behalf of the Petitioner, who is Defendant No.17 in the suit, that even if she has been set exparte, her right to be examined as a witness is not affected. Therefore, the challenge in present C.M.P. refusing her to accept as a witness at the instance of Defendant No.25 with further direction to exclude certain facts regarding execution of RSD dated 06.07.1945 is beyond the power of court.

4. On the other hand, it is submitted on behalf of Opposite Party No.1 (Plaintiff) that when Defendant No.17 did not file the petition to examine her as a witness and it is admitted that she has been set ex- parte in the suit, no locus standi is there on her part to maintain the present C.M.P. for challenging the impugned order.

5. When a person is set ex-parte in a suit, he loses his right to participate in the suit subject to consideration of the court to set aside the order. It is not that the Defendant No.17 still remained as a party to contest the claim of the Plaintiff from the date she was set ex-parte. Since Defendant No.17 was admittedly remained ex-parte she loses her right to participate in the suit. However, this will not affect her right to Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:43:03 be a witness on behalf of the contesting party because a contesting party has the right to choose his witness.

6. Defendant No.25 filed the petition to examine Defendant No.17 as a witness on his behalf, without describing her status as such in the petition. This Defendant No.17 has been introduced as a witness by her name. Additionally, Defendant No.25 prayed to examine said witness at the first instance withholding his right to be examined later in terms of the provisions contained under Order 18 Rule 3-A, C.P.C. However, the learned trial court exercising its discretion did not allow the prayer of Defendant No.25 in terms of Order 18 Rule 3-A, C.P.C. When Defendants 1, 8, 25 are admittedly contesting the suit by filing their WS, the reasons expressed by learned trial court that Defendant No.25 is lacking any substantial reason to examine Ashalata Nayak (Defendant No.17) at the first instance before examining Defendant No.25 cannot be faulted with.

7. It is seen that the document, i.e. RSD dated 06.07.1945, has been marked as “X” in terms of the earlier direction of this Court passed in C.M.P. No.649 of 2025. Thus, the further observation of the learned trial court to file another evidence affidavit excluding description of Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:43:03 RSD dated 06.07.1945 cannot be held as correct at the present stage. It is important to observe here that a contesting party to a suit has his right to chose his own witnesses. It is regardless of the fact that such witness, if agrees to depose on behalf of the party, was a party in the same case and subsequently set ex-parte. In Mohd. Abdul Wahid v. Nilofer, (2024) 2 SCC 144, the Ho