Civil procedure rules may prevent the community's religious leader from appearing as a witness
Syedna Mufaddal Saifuddin, the 53rd Dai of the Dawoodi Bohra community
Syedna Mufaddal Saifuddin — the religious and spiritual leader of the Dawoodi Bohra community — will not be appearing as a witness in the succession row being heard at the Bombay High Court since 2014.
His counsel informed the court earlier this month that their first witness would be Dr Omar Malik, a neurologist who treated the 52nd Dai in London after he suffered a stroke.
Argus Partners, the solicitor for Saifuddin confirmed the development.
Taher Fakhruddin. File pics
Order 18, Rule 3A of the Code of Civil Procedure (CPC) requires that a defendant wishing to appear as a witness must do so before any other witnesses appear on his behalf in court. This can be changed only if the court permits the defendant to appear as a witness later.
Taher Fakhruddin, son of Maulana Qutbuddin has challenged Saifuddin's succession as the 53rd Dai, and seeks to be appointed as the 54th, on the premise that his father, who was the second-in-command, was the rightful successor.
The decision of the defendant not appearing as the first witness was communicated by his counsel to the court on February 21.
Malik is expected to submit his affidavit of evidence by March 10, and his cross-examination is expected to commence on April 22.
Advocate Anand Desai, appearing on behalf of Fakhruddin, said that usually an application, stating that the defendant would appear as a witness but only later, is made to the court. "They haven't done this here. The judge made it clear he would not let the defendant come later to take the stand," Desai said.
He termed the decision as "unusual" in a case where evidence can come only from the concerned person, and not from anyone else.
Subject to the roster, Justice GS Patel will list the matter for cross-examination on any day between April 22 and 24.