Vineet Kothari, J. - (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. None appears on behalf of the respondents despite service.
(3.) THE provisions of Section 137 and 138 of the Evidence Act are quoted below for ready reference: 137. Examination -in -chief. - -The examination of a witness by the party who calls him shall be called his examination -in -chief. Cross -examination. - -The examination of a witness by the adverse party shall be called his cross -examination. Re -examinations. - -The examination of a witness, subsequent to the cross -examination by the Party who called him, shall be called his re -examination. 138. Order of examination. - -Witnesses shall be first examined -in -chief then if the adverse party so desires cross -examined, then if the party calling him so desires re -examined. The examination and cross -examination must relate to the relevant facts, but the cross -examination need not be confined to the facts to which the testified on his examination -in -chief Direction of re -examination. - -The re -examination shall be directed to the explanation of matters referred cross -examination; and, if new matter is, by permission of the Court, introduced in re -examination, the, adverse party may further cross -examine upon that matter.;