ORDER : Krushna Ram Mohapatra, J. 1. 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. 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 alias Perianna Gounder v. 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 debarred from examining its adversary as a witness on his behalf. No provision could be brought to our notice on behalf of any of the parties to show that a party is debarred from examining its adversary as a witness on his behalf. A plaintiff can examine any witness he so likes - the witness may be a stranger, may be a man of his own party or party himself or may be a defendant or his man. Therefore, if a plaintiff wants to examine a defendant as a witness on his behalf, he cannot be precluded from examining him on the ground that the said defendant has neither appeared in the suit nor upon appearance filed written statement nor prayer for filing written statement has been rejected. Therefore, in my view, trial Court has committed material irregularity in the exercise of jurisdiction in debarring the plaintiffs from examining defendant No. 2 as a witness on their behalf." (Emphasis supplied) 4.1. Again, this Court in the case of Braja Mohan Patra (supra), it is held at paragraph-6 as under:- "6. In the case of Gurbakhsh Singh ( AIR 1927 PC 230 ) (supra) keeping in view the facts involved in that case. Privy Council deprecated the practice of calling the opponent party as a witness in the following circumstances; "It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness." In the case of Mahunt Shatrugan Das ( AIR 1938 PC 59 ) (supra) Privy Council deprecated the practice of the plaintiff withholding himself from the witness box and calling the defendant to be his witness." Similar view has also been expressed by different High Courts. 5. From the above case laws, it emanates that although in the case of Shatrugan Das, Mahant substituted for Mahant Ram Lakhan Das alias Ram Lakhman Das v. Sham Das, Bawa and others, reported in AIR 1938 Privy Council 59, tendering evidence by other party withholding his own witness by a party to the suit is, deprecated, but discussing the ratio decided therein, this Court held that a party to the suit can examine its adversary as a witness to lead evidence. Thus, there cannot be any raise of eyebrows in permitting a defendant to examine the co-defendant as a witness on his behalf. 6. In the case at hand, there is another bottleneck to examine a co-defendant, namely, defendant No. 1, who has been set ex parte and has not filed her written statement. Thus, the question arises as to whether a party, who is set ex parte and has not filed written statement, can be examined as a witness. Law is no more res integra on this issue. In the case of Radhamoni Padhiari v. Tangudu Jaganatham and another, reported in AIR 1978 Orissa 209, it is held as follows:- "3. Legal position is settled beyond doubt that even if a defendant does not file a written statement, he is entitled to participate in the proceedings without any written plea. After the defendant in the instant case had been set ex-parte, an application had been made to recall the order and to allow her to file a written statement and to participate in the proceeding. On 2nd of March, 1977, when that application was rejected, the trial Court should have made it clear that even if on the facts of the case the defendant was not being relegated to the position as on 1-2-1977, she was free to participate in the proceeding, cross-examine witnesses of the plaintiff and even lead evidence to meet the evidence led by the adversary. Once the defendant came forward in the case to participate in the proceedings, there was no justification to keep her out and the learned trial Judge would have acted within his discretion in an appropriate way by allowing the defendant to participate in the proceedings on terms of cost." (Emphasis supplied) 7. Thus, it is crystal clear that even a defendant who is set ex-parte can lead evidence subject to certain riders, which can be broadly stated as follows:- Firstly, the witness cannot propound a new case or the case of its own; Secondly, the witness must not have entered witness box in the said suit previously to lead evidence and has been cross-examined; and, Thirdly, permitting a party to the suit to be examined on behalf of another, is always at the discretion of the Court. 8. 8. Although there are divergent views on the issue of examining of a party as witness by another, taking into consideration the aforesaid case laws, I am of the considered view that there cannot be any absolute bar for a party in a suit to be examined as a witness on behalf of another. It is at the discretion of the Court to consider the same in the facts and circumstances of the case to allow or reject a request/prayer made by a party to examine another as a witness in the said suit. 9. In the instant case, this material aspect has not been considered by the learned trial Court. Hence, this Court, while setting aside the impugned order dated 27.11.2019 under Annexure-6 passed by the learned Civil Judge (Senior Division), Bhadrak in CS No. 129 of 2003 (I) remits the matter to adjudicate it afresh giving opportunity of hearing to the parties concerned. 10. Since this order is passed without issuing notice to the opposite parties, they are at liberty to seek variance of the same if they feel aggrieved. 11. Before parting with the case I record my note of appreciation for Mr. Bansidhar Baug and Mr. Bibekananda Bhuyan, learned counsels for their able assistance in deciding the aforesaid question of law. 12. With the aforesaid observation and direction, the CMP is disposed of. 12.1. Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court's Notice No. 4587 dated 25.03.2020.