SUBHASHCHAND Vs. SHREE SHAISHSHAHI ACHARYA MANDIR ALIRJAPUR

JUDGEMENT

(1.) The present petition is filed under Article 227 of the Constitution of India by which the application filed by the plaintiff u/S.47 of Indian Evidence Act read with Order 16 Rule 2, 14 and Sec.151 CPC has been allowed.

(2.) The respondent No.1 has filed a suit for declaration and cancellation of registration of Public Trust. The plaintiffs' case is based on a will alleged to be executed by one Acharya of the Trust.

(3.) Counsel for petitioners submits that by the impugned order, the court has erroneously allowed the said application. He submits that on 27/9/2021 plaintiff closed his right to lead the evidence and thereafter the defendant has also completed his evidence on 16/12/2021. Thereafter the case was fixed for final arguments. At that stage, the respondents plaintiffs filed an application for summoning the attesting witness namely Shri Jankivallabh Kothari as witness. The said application was allowed. Against the said order the petitioner filed MP No.999/2022. The said petition was admitted for final hearing and the proceedings of the suit was stayed. Lateron the said Shri Jankivallabh Kothari died and the petition has been dismissed having been rendered infructuous. Thereafter respondents plaintiffs filed application u/S.47 of the Evidence Act read with Order 16 Rule 2, 14 and 151 CPC for examining the witness Akhilesh Sharma to prove the handwriting and signature of attesting witness. By the impugned order, the said application has been allowed.