RENUKABEN DEVIDAS PATEL Vs. TUSHAR DEVIDAS PATEL

JUDGEMENT

(1.) The present petition is filed under Articles 226 and 227 of the Constitution of India for the purpose of quashing and setting aside the order below Exh.98 dated 8.2.2019 passed by the learned Court No.11 of City Civil Court, Ahmedabad in Civil Suit No.755/2009.

(2.) The premise on which the present petition is brought by the original defendants No.1 and 4 is that respondent No.1, who is the original plaintiff of civil suit filed against his widow mother and 3 sisters in the City Civil Court, Ahmedabad claiming right in Bungalow No.6-?A, Kumkum Society, Near Sardar Patel Colony, Stadium Road, Ahmedabad originally owned by Devidas Ratilal Patel, by making an assertion that this property in question is a property of Devidas Ratilal Patel who executed a Will dated 23.12.2002 wherein he bequeathed his aforesaid property to his 3 sisters viz., Patel Kinnari Deepakbhai, Patel Paulomi Hemant and Dipaben Devidas in equal share. The said Devidas Ratilal Patel died on 29.6.2008 and as per the his Will, the aforementioned 3 daughters became joint owners of Bungalow No.6-?A, Kumkum Society i.e., the suit property.

(3.) The respondent Nos.2 and 3 are the joint owners of the said bungalow, however, they have been joined, as respondent Nos.2 and 3, as they are presently residing in USA and it was not possible to obtain their signature on Vakalatnama or to secure Power of Attorney. It is the case of the petitioner that at the stage of recording of evidence in the aforesaid suit, Maneklal Trivedi and his Wife Sharmishtaben are the witnesses in the Will dated 23.12.2002 executed by deceased Devidas Ratilal Patel. Mr.Bipinchandra Maneklal Trivedi, one of the witness had submitted his affidavit of examination in chief on 6.7.2017 at Exh.97. The original Will was produced on record of the proceedings, however, during the course of recording evidence, witness Bipinchandra Maneklal Trivedi was not shown original Will, and as such, the signature could not be identified. It is further case of the petitioner that though said Bipinchandra Maneklal Trivedi had specifically stated in his deposition that if original Will is shown to him, he would be able to identify his signature. The cross examination was also completed on 22.8.2017, but the original Will was not shown. The petitioner has invoked extra ordinary jurisdiction by asserting that it is not necessary to show the original will to Bipinchandra Maneklal Trivedi. As a result of this, an application was submitted at Exh.98 for recalling the said Bipinchandra Maneklal Trivedi and only for the purpose of identifying his signature and the signature of his Wife, a request for recalling was made. However, according to the petitioner, though the same was not to fill-?up lacuna, the learned Judge misconstrued the relevant provisions of the Code of Civil Procedure and rejected the request for recalling of witness by passing an order on 8.2.2019, which is made subject matter of the present petition.