PUSHPABEN CHAMPAKLAL SHAH LOKHANDWALA Vs. RIKHAVDEV TIRTHRAM SHARMA

JUDGEMENT

(1.) Heard Mr.K.R. Joshi, learned counsel appearing for the petitioners and Ms.Renuka Gaur, learned counsel appearing on behalf of Mr.P.K. Handa for the respondents. Rule. The formal service of Rule is waived by Ms.Renuka Gaur on behalf of the respondents. The Rule is fixed forthwith on consent.

(2.) The present petition is moved under Article 227 of the Constitution of India by the petitioners-orig.plaintiffs making grievance against the order passed by the ld.Civil Judge (J.D.), Ankleshwar, whereby the petitioners-orig.plaintiffs are directed to step into the witness-box as witnesses of the defendants and that too before the respondents-orig.defendants' examination to disprove the case of the petitioners and to prove the contentions raised by the respondents-defendants in the written statement.

(3.) The complication cropped up in the proceedings of Regular Civil Suit No.10 of 1992 when the plaintiffs decided to lead evidence through their power of attorney holder. Undisputedly, there is a detailed cross-examination of Shri Ajay Ramlal, power of attorney holder of the plaintiffs and the contention of the defendants is that only with a view to prove certain documents, the orig.plaintiffs are required to be examined and when they lost hope after cross-examination of the power of attorney of the plaintiffs, and other witnesses they opted to summon the plaintiffs as their witnesses so that the original documents i.e. Mark 237/10 to 237/13 can be shown to the plaintiffs and in turn the same can be tendered in evidence. As per law, a document unless proved and formally tendered in evidence cannot be accepted in a proceeding and therefore, the mode selected by the defendants cannot be said to be illegal or unwarranted. Here in the present case, the plaintiff no.1 had not appointed any power of attorney holder till the date of filing of suit. So if any one of the plaintiffs is called and she refused to identify her or co-plaintiffs own signature on a document shown then in turn the defendants can examine any competent witness who can throw light as to the genuineness of the signature of such witness. But before such witness or witnesses are called, the first person whose signature is in dispute, if is asked to step into the witness-box, then such attempt should be viewed as an act bona fide. Here these documents were shown to power of attorney holder but he has denied the suggestion made by advocate appearing for the defendants and therefore, these documents are not exhibited and received in evidence.