CHANDRABHAN R SINGH Vs. PRABHAKAR R DESAI

JUDGEMENT

(1.) The petitioner has challenged the order, whereby pending the trial, the trial court rejected his application to call defendants 4 and 5 as witnesses. The fact remains that while taking evidence and passing orders relating to admissibility of document, by order dated 7.9.2007 the court has made observation, the relevant portion is as under: "The document at sr. no.8 is an affidavit which is required to be proved and therefore it is marked as article X. "

(2.) These are the affidavits basically sworn by the said defendants 4 and 5. They are not appearing in the matter till this date except by sending written statement by post which is also not taken on record. No Advocate is appearing on their behalf. Therefore, the situation, whether they may or may not appear in the matter, there is no point keeping the evidence of plaintiff in dark in this regard. The requirement of law to prove document including this affidavit which goes to the root of the matter or at least support the case of the plaintiff, there is no reason to discard such application merely on a foundation that he is a party to the proceeding. In the suit like this, in my view, the circumstances are sufficient to grant the application filed by the petitioner. It is necessary to give full opportunity to the parties to put their case and evidence.

(3.) The judgment as cited by the learned counsel for the respondent in Pirgonda Hongonda v. Vishwanath Ganesh & ors., AIR 1956 Bom. 251 is not applicable in view of above facts. The plaintiff/parties cannot be deprived of their right to substantiate their case by leading proper evidence including by calling the defendants as witnesses, specially when the defendants are not actively participating the proceedings.