Partly allowed

Shri Abdul Razak S/O Lalsab Awate v. Smt. Habibbegaum Azizsab Mudnal

Karnataka HC13 Dec 2023WP/107423/2023

Case brief

AI extract

What is this about?

Writ petition challenging the trial court's rejection of an application to refer a disputed sale agreement and a sale deed to handwriting experts. The court remanded the matter regarding the disputed agreement, finding lack of reasoning, but upheld the rejection for the admitted sale deed.

What did the court decide?

Impugned order set aside regarding Ex.P11; trial court remanded to pass speaking order on necessity of handwriting expert for the sale agreement.

Shri Abdul Razak S/O Lalsab Awate Vs Smt. Habibbegaum… — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC-D:14628 WP No. 107423 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13^TH DAY OF DECEMBER, 2023 BEFORE

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THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION NO. 107423 OF 2023 (GM-CPC)

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BETWEEN:

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SHRI ABDUL RAZAK S/O. LALSAB AWATE, AGE: ABOUT 66 YEARS, OCC: BUSINESS, R/O. MAHANTANAGAR KAMALAPUR MAIN ROAD, MALAPUR, DHARWAD.

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…PETITIONER

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(BY SRI. SHRIKANT T. PATIL, SRI. ROHIT S. PATIL, SRI SHRIKANTH K. DESHPANDE, SRI. KAMALAKAR M.S. ADVOCATES)

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AND:

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SMT. HABIBBEGAUM AZIZSAB MUDNAL, AGE: 68 YEARS, OCC: HOUSE HOLD, R/O: KONNUR, TQ: MUDDEBIHAL, DIST: VIJAYAPUR-586212.

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GIRIJA A BYAHATTI Digitally signed by GIRIJA A BYAHATTI

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ABDUL RAHIM S/O. NISSARAHAMMAD MUNSHI, AGE: 62 YEARS, OCC: AGRICULTURIST & BUSINESS, R/O. GOUDAR ONI, GULAGANJIKOPPA, DHARWAD-580008.

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…RESPONDENTS

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(BY SRI. S.N. BANAKAR, ADVOCATE FOR R1 & R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 06-12-2023 PASSED ON THE INTERIM APPLICATION IN O.S. NO. 205/2010 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC DHARWAD VIDE ANNEXURE-G BE PASSED IN THE ENDS OF JUSTICE.

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THIS PETITION, COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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2 - NC: 2023:KHC-D:14628 WP No. 107423 of 2023

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ORDER

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Aggrieved by the order dated 06.12.2023 passed on an application filed under Order XXVI Rule 10(A) read with Section 151 of the Code of Civil Procedure, 1908, by the Prl. Civil Judge & Prl. JMFC., Dharwad (hereinafter referred to as the ‘trial Court’) the plaintiff therein has preferred this writ petition. When the original suit was posted for final arguments, the plaintiff filed an application for referring Exs.P11 and P16 for handwriting expert and forensic expert. The same has been rejected by the trial Court against which, this writ petition is filed.

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The suit filed by the plaintiff is one for specific performance of contract, on the ground that respondent No.1 herein has executed a sale agreement dated 12.11.1996 in his favour and also one for holding that the subsequent sale deed executed by respondent No.1 in favour of respondent No.2 on 11.02.2010 in respect of the same property is not binding on him.

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3 - NC: 2023:KHC-D:14628 WP No. 107423 of 2023

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After evidence of both the petitioner and respondents are closed and when the matter was posted for arguments, petitioner has filed the aforementioned application before the trial Court on the ground that, respondent No.1 has specifically denied that he has not executed the sale agreement dated 12.11.1996 (Ex.P11) in the original suit and also that respondent No.1 has not executed the sale deed in favour of respondent No.2 as contended by both of them, the copy of the sale deed being marked at Ex.P16 in the original suit.

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The trial Court has rejected the application of

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the petitioner herein.

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The case of the petitioner is that, the trial Court has erroneously dismissed the application filed by the petitioner. The issue No.1 framed in the original suit reads as under:

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“1. Whether the plaintiff proves that on 12.11.1996 the defendant executed an agreement of sale in his

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4 - NC: 2023:KHC-D:14628 WP No. 107423 of 2023

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favour agreeing to sell the suit property to him as contended in the plaint?”

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It is contended that, once the same is denied by respondent No.1 in her written statement, the said document is required to be referred to the handwriting expert.

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It is further contended that, prayer (g) in the plaint filed by the plaintiff reads as under:

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“(g) It is may be declared that the alleged sale deed dated 11/02/2010 executed by defendant No.1 in favour of defendant No.2 is not binding on the rights and interest of plaintiff.”

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And it requires that Ex.P16, the sale deed executed by respondent No.1 in favour of respondent No.2 also be referred to handwriting expert and forensic expert to verify whether the signatures are genuine and thumb impression of respondent No.1 is genuine. It is submitted that the trial Court erred in not appreciating these facts and he prays for setting aside the impugned order and allowing I.A. filed by him.

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5 - NC: 2023:KHC-D:14628 WP No. 107423 of 2023

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6. Per contra, advocate for respondents justifies

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the order passed by the trial Court and prays for dismissal of the writ petition.

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The question that arises for consideration in the

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instant case under the given facts and circumstances of the case is, whether it is required for the trial Court to refer Exs.P11 and P16 to handwriting and forensic experts as prayed for by the petitioner therein?

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It is the discretion of the Court to refer the matter for forensic/handwriting expert. If the Court is of the opinion that the said documents need not be referred to handwriting expert or forensic expert and the execution of the same can be proved otherwise or if it is in a position

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to come to a definite conclusion whether the said documents have been executed as alleged, then in that event, the trial Court need not refer the said documents to the handwriting expert/forensic expert.

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6 - NC: 2023:KHC-D:14628 WP No. 107423 of 2023

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In the instant case, in respect of the sale deed

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dated 11.02.2010 (Ex.P16), the prayer of the petitioner is that, the trial Court should hold that the said sale deed is not binding on him. He has not argued for setting aside the sale deed stating that it has never been executed by respondent No.1 in favor of respondent No.2. Further, respondent No.1 has admitted in her written statement that she has executed the sale deed in favour of respondent No.2 and it is a registered document. The trial Court in the impugned order has discussed at length as to the same and also has come to the conclusion that there is no need for any comparison of signatures or any scientific investigation in respect thereof when the executor herself admits her signature and photograph. I do not see any error in the order of the trial Court insofar as it relates to rejecting the application of the petitioner in respect of the sale deed dated 11.02.2010 (Ex.P16).

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However, the trial Court in the impugned order has not discussed anything about the sale agreement

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dated 12.11.1996 (Ex.P11) and no reasoning is given as to why the trial Court is of the opinion that Ex.P11 should not be referred to handwriting expert. Admittedly, the execution of the sale agreement is disputed by respondent No.1. However, that alone is not sufficient cause to necessarily refer the said document for handwriting expert. If the trial Court comes to a conclusion that it has sufficient material to conclude as to whether the said Ex.P11, the said sale agreement, has been executed by respondent No.1 in favour of petitioner herein, it need not refer the matter to the handwriting expert as requested by the petitioner. However, as there is no discussion in the impugned order as to the same, it would be appropriate to remand the matter back to the trial Court to decide as to whether there is a necessity to refer the sale agreement to

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handwriting expert or not by way of a speaking order.

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Hence the following:

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NC: 2023:KHC-D:14628 WP No. 107423 of 2023

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ORDER

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i. The impugned order dated 06.12.2023, passed on application filed under Order XXVI Rule 10(A) R/w. Section 151 of the Code of Civil Procedure, by the petitioner herein in O.S.No.205/2010, is hereby set aside, insofar as it relates to rejection of the contention of the petitioner to refer the sale agreement dated 12.11.1996 (Ex.P11) to the handwriting expert.

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ii. The order of rejection in respect of the sale deed dated 11.02.2010 (Ex.P16) in the said impugned order is upheld.

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iii. The trial Court is directed to again hear the parties concerned as to whether Ex.P11 has to be referred to handwriting expert or not and pass a speaking order regarding the same.

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iv. Writ petition is disposed of accordingly.

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List No.: 1 Sl No.: 9

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Sd/JUDGE

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RH/gab Ct-mck

Shri Abdul Razak S/O Lalsab Awate v. Smt. Habibbegaum Azizsab Mudnal

Case brief

What is this about?

What did the court decide?

Shri Abdul Razak S/O Lalsab Awate v. Smt. Habibbegaum Azizsab Mudnal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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