ORDER

1. Office has pointed out that respondent No.4 is unserved.

2. Learned counsel for the petitioner has submitted that the respondent No.4 who is still unserved, is a proforma respondent, therefore, the service on him be dispensed with.

3. In wake of the statement made by the counsel for the petitioner, the service of notice on respondent No.4 is hereby dispensed with at the cost of the petitioner.

4. The present petition under Article 227 of the Constitution of India is preferred against the order dated 22.11.2023 passed by Sixth Additional Judge to First Civil Judge, Junior Division, District Morena in Civil Suit No.52A/2020, whereby an objection raised by the petitioner with regard to marking of the signatures of the witnesses, namely, Murari and Motiram over the power of attorney by the power of attorney holder was rejected and permission was granted to mark the signatures of the witnesses Murari and Motiram at the behest of PW-1 the power of attorney holder.

5. Learned counsel for the petitioner had argued before this Court that only issue with regard to marking of signatures of the attesting witnesses to power of attorney executed in favor of PW-1 is raised before this Court and the reliance placed by learned Trial Court on Section 67 of the Indian Evidence Act, 1872 and allowing PW-1 to mark their signatures was per se illegal as at the most the learned Trial Court could have allowed PW-1 to state that in his presence both the witnesses have signed the documents and the signatures of the witnesses could only have been marked when the statements of the attesting witnesses would be recorded as section 67 of the Indian Evidence Act speaks of proof of signatures and handwriting of person alleged to have signed or written document produced and at the instance of PW-1 who is not the scribe of the signatures no marking could have been allowed to be done of the signatures made by the attesting witnesses, thus, the permission which has been granted by learned Trial Court is per se illegal.

6. It was further argued that from the very provision of the Indian Evidence Act is clear that the person whose handwriting/signatures are to be proved, has to come before the Court and prove the factum of the said signatures over the document and no other person on his behalf can prove his signatures accept for submitting that the said person has signed in front of him. It was further argued that apart from the aforesaid only if the said attesting witnesses is not alive, then the said procedure could be adopted.

7. It was, thus, prayed that the present petition deserves to be allowed and the impugned order being dehors the legal provisions of law, deserves to be quashed.

8. On the other hand, learned counsel for the respondent had submitted that it is trite law that by mere exhibiting or marking a document, does not amount to its proof and the same has to be proved by the person relying on the said document by cogent evidence and herein case only the person in whose favor the power of attorney was executed had marked the signatures of the attesting witnesses to the power of attorney which would not mean that said person had signed the said documents and the same can be proved to the contrary and it will also not amount to proving of the contents of the very power of attorney which could very well be reverted by the other side.

9. It was further submitted that the learned trial Court while referring to section 67 of the Indian Evidence Act has rightly held that since PW-1 had only tried to bring the fact that those witnesses have signed in front of him and for that it was required to mark their signatures, no illegality can be said to have been committed by the learned Trial Court, thus, it was prayed that the present petition be dismissed.

10. Heard the counsels for the parties and perused the record.

11. Section 67 of the Indian Evidence Act which deals with proof of signature and hand writing of person alleged to have signed or written document