Court may summon a handwriting witness under Section 47 of the Evidence Act when attesting witnesses are deceased, thereby ensuring justice and fair trial under Section 151 of the CPC.

ORDER :

1. The present petition is filed under Article 227 of the Constitution of India by which the application filed by the plaintiff under section 47 of Indian EVIDENCE ACT read with Order 16, Rules 2, 14 and section 151, CIVIL PROCEDURE CODE 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 under section 47 of the EVIDENCE ACT read with Order 16, Rule 2, 14 and 151, CIVIL PROCEDURE CODE 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.

4. Counsel for petitioners submits that the order is contrary to the provisions of Order 16, Rule 14, CIVIL PROCEDURE CODE . The said provision does not permit the Court to summon a witness at the instance of the plaintiff who has not been cited as a witness. The power of the Court is to summon any stranger who is not a party as plaintiff or defendant. The power is suo motu power. In support of his submissions he has placed reliance on an order passed dated 21-12-2022 by co-ordinate Bench in the Election Petition No. 1/2019 in the matter of Subhash Kumar Sojatia vs. Devilal Dhakad and Others.

5. Per contra, learned counsel for respondents submits that the application was filed under section 47 read with Order 16, Rule 2, 14 and 151, CIVIL PROCEDURE CODE . It is argued that section 47 confers power to the Court to summon a witness who is acquainted with the handwriting of the person by whom it is supposed to be written or signed. It is also argued that the case of the plaintiff is based on will and if such witness is not examined, a great prejudice would cause to the respondent plaintiff.

6. Section 47 of Indian EVIDENCE ACT reads as under:

“47. Opinion as to handwriting, when relevant - When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.”

7. After hearing learned counsel for parties and considering section 47 of India EVIDENCE ACT as also the provisions of Order 16, Rule 2, 14 of the CIVIL PROCEDURE CODE , I am of the view that if the suit is based on will and both the attesting witnesses have died, the plai