Dismissed

Smt Radha v. Smt Venkatamma

Karnataka HC9 Oct 2023WP/15705/2022

Case brief

AI extract

What is this about?

Writ petition under Article 227 challenging the trial court's rejection of an application for a Court Commissioner under Order XXVI Rule 10A CPC to compare signatures. The Court held the trial court correctly rejected the request as the petitioner admitted the partition deed but denied the simultaneous sale deed, appearing to protract proceedings.

What did the court decide?

The writ petition was dismissed for lack of merit, and the impugned order of the Trial Court accepting the rejection of the Court Commissioner application was left intact.

Smt Radha Vs Smt Venkatamma — Partition | Karnataka HC (2023)

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NC: 2023:KHC:36579 WP No.15705 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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WRIT PETITION NO.15705 OF 2022 (GM-CPC)

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BETWEEN:

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SMT. RADHA W/O SRI. NAGARAJ D/O NANJAPPA AGED ABOUT 49 YEARS R/AT NO.53, NANDINI LAYOUT JAIMARUTHINAGARA BENGALURU-560096.

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…PETITIONER

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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(BY SRI. C.R. SUBRAMANYA, ADV.,)

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AND:

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SMT. VENKATAMMA D/O LATE THIMMARAYAPPA AGED ABOUT 83 YEARS

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W/O LATE NANJAPPA @ KARAGAPPA.

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SMT. N. BHAGYAMMA W/O SRI. THIMMARAYAPPA D/O NANJAPPA @ KARAGAPP AGED ABOUT 63 YEARS.

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SMT. N. RATHNAMMA AGED ABOUT 58 YEARS W/O SRI. MURALI.

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SMT. T.G. GEETHA AGED ABOUT 50 YEARS

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NC: 2023:KHC:36579 WP No.15705 of 2022

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W/O LATE N. SHANKAR.

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SMT. N. LALITHA AGED ABOUT 60 YEARS W/O LATE CHANDRAPPA.

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SMT. N. VENKATALAKSHNMI AGED ABOUT 58 YEARS W/O SRI. GOPALASWAMY.

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SMT. RUKMINI AGED ABOUT 44 YEARS W/O SRI. NARAYANASWAMY.

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SRI. M. SHANTHAMMA AGED ABOUT 58 YEARS W/O SRI. RAMANNA.

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SRI. M. NARAYANASWAMY AGED ABOUT 53 YEARS S/O SRI. DODDAMINIYAPPA.

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SRI. M. SURESH AGED ABOUT 50 YEARS S/O SRI. DODDAMUNIYAPPA.

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SRI. M. SREENIVAS AGED ABOUT 46 YEARS S/O SRI. DODDAMUNIYAPPA.

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SRI. M. SUDHA AGED ABOUT 44 YEARS W/O SRI. THIMMA RAJU.

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ALL ARE RESIDENTS OF DINNUR VILLAGE, KADUGODI POST BIDARAHALLI HOBLI BENGALURU-560057.

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NC: 2023:KHC:36579 WP No.15705 of 2022

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SRI. P.K. SATHYAPAL @ SATHYAVIRATHAN S/O LATE KOCHUKRISHNAN AGED MAJOR R/AT NO.512, 3RD CROSS 9TH MAIN, HAL 2ND STAGE INDIRANAGAR, BENGALURU-560038.

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…RESPONDENTS

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(BY SRI. P. RAVEENDRAN, ADV., FOR R13 R1 TO R4, R6 TO R12 SERVED BUT UNREPRESENTED NOTICE TO R5 DISPENSED WITH V.C.O.DTD:17.07.2023)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE LEARNED XIX ADDL. CITY CIVIL JUDGE AT BANGALORE IN O.S. NO.4418/2017 DTD. 07.07.2022 VIDE ANNX-F AND TO GRANT SUCH OTHER RELIEFS AS THIS HONBLE COURT DEEMS FIT TO GRANT UNDER THE CIRCUMSTANCES OF THE CASE INCLUDING THE AWARD OF COST. GRANT AN INTERIM ORDER TO STAY FURTHER PROCEEDING IN O.S.NO.4418/2017 PURSUANCE TO THE ORDER PASSED BY THE LEARNED JUDGE VIDE ANNX-F DTD. 07.07.2022 PENDING DISPOSAL OF THE ABOVE WRIT PETITION.

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THIS PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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4 - NC: 2023:KHC:36579 WP No.15705 of 2022

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ORDER

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The petitioner is before this Court assailing the order dated 07.07.2022 passed in O.S.No.4418/2017 by the XIX Addl. City Civil Judge at Bangalore whereby the application filed by the petitioner - plaintiff under Order XXVI Rule 10A of the Code of Civil Procedure, 1908 seeking for appointment of Court Commissioner for the purpose of comparing admitted signature, admitted thumb impression and admitted photographs of the plaintiff with the disputed one in Ex.P3 which was rejected by the Trial Court.

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Brief facts leading to filing of this petition are that the petitioner - plaintiff has filed O.S.No.4418/2017 seeking partition of the suit schedule properties by metes and bounds and to put the petitioner - plaintiff in possession of 1/12th share therein and further prayer to declare that the sale deed dated 09.01.2004 executed by the defendant Nos.1 to 12 in favour of defendant No.13 is not binding on the petitioner - plaintiff as far as her share therein and further prayer for permanent injunction, etc. The suit was posted

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for final arguments, the petitioner - plaintiff had moved an application for appointment of Court Commissioner for the purpose of comparing the admitted and disputed signatures, thumb impression and photographs which came to be rejected by the Trial Court under the impugned order dated 07.07.2022. Under these circumstances, the present petition has been filed.

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Learned counsel for the petitioner submits that the

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Trial Court has committed a grave error in rejecting the application by recording a finding that the petitioner - plaintiff had admitted the execution of sale deed dated 09.01.2004 in the evidence. It is submitted that on bare perusal of the cross-examination of PW-1 at paragraphs 15 to 19, it is evident that the petitioner - plaintiff has categorically denied the suggestion put by the defendants on the execution of the sale deed and without considering the same, the Trial Court has proceeded to reject the application for appointment of Court Commissioner. It is further submitted that on bare perusal of the documents available

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on record i.e. admitted partition deed, alleged registered sale deed and the admitted signature of the petitioner - plaintiff, it is evident that the other defendants in collusion with the defendant No.13, have got the sale deed dated 09.01.2004 executed by impersonating the photograph and signature of the petitioner. The petitioner - plaintiff was not the signatory to the said instructions. Hence, it was necessary to appoint the Court Commissioner to compare the admitted signature, thumb impression and the admitted photograph of the petitioner - plaintiff with the disputed one at Ex.P3.

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Per contra, learned counsel for the respondent No.13 supports the impugned order of the Trial Court and submits that the Trial Court has categorically recorded a finding that the petitioner - plaintiff has admitted during the course of cross-examination that she is a party and has executed along with other family members both the partition deed as well as sale deed on 09.01.2004. Hence, the question of asking the Court to appoint the Court Commissioner is nothing but an abuse of process of law. It

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7 - NC: 2023:KHC:36579 WP No.15705 of 2022

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is submitted that the said application is filed only with an intention to deprive the lawful right accrued in favour of the defendant No.13. It is further submitted that the petitioner - plaintiff along with other family members has executed a registered sale deed dated 09.01.2004 and on the same day, the partition deed was also registered and nearly after 13 years, the petitioner - plaintiff has filed a suit for partition only with an intention to deprive the legitimate right of the defendant No.13 who is bonafide purchaser of the property in question. It is also submitted that filing of the present application is an attempt to protract the proceedings that too when the matter is set down for final arguments in the suit. He therefore, seeks to dismiss the writ petition.

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Having heard the learned counsel for the petitioner, learned counsel for the respondent and on perusal of the material evidence available on record, it is evident that the petitioner herein is the plaintiff in O.S.No.4418/2017 filed a suit for partition and further prayer that the sale deed dated 09.01.2004 is not binding on the plaintiff as far as her share

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NC: 2023:KHC:36579 WP No.15705 of 2022

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and other prayers. It is also not in dispute that when the suit was set down for final arguments, the present application was moved by the petitioner - plaintiff under Order XXVI Rule 10A of the Code of Civil Procedure seeking appointment of the Court Commissioner for the purpose of comparing the admitted signature, admitted thumb impression and admitted photographs of the plaintiff with the disputed one in Ex.P3.

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On careful perusal of the plaint averments, it is evident that the petitioner - plaintiff in paragraph 3 of the plaint has admitted about the execution of the registered partition deed dated 09.01.2004. The petitioner has admitted the registration of the partition deed, however, in the cross-examination of PW-1 (petitioner - plaintiff), she has admitted the photographs and signature of the other family members in the sale deed dated 09.01.2004, however, she denies the execution of sale deed, which was registered on the same day i.e. 09.01.2004. In paragraph 4 of the plaint, the petitioner - plaintiff has denied the execution of the

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registered sale deed dated 09.01.2004. On bare comparison of the two registered instruments, signature, photograph, it is very clear that both the documents are registered on same day and same persons have affixed the signatures and photographs and both the documents are marked in the suit. On comparison of the admitted document i.e. the partition deed dated 09.01.2004 and disputed document i.e. registered sale deed dated 09.01.2004, it appears that the very same petitioner - plaintiff's photograph and signature is found in both the documents and the documents secured by

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the Trial Court from the Sub-registrar's office which is marked as Ex.CW-2 and there is no discrepancy in the photographs and signature. Hence, there is no merit in the contentions urged by the petitioner - plaintiff.

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Be that as it may, the Trial Court is required to look

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into the evidence and decide the suit on its merit if any finding recorded in the present petition may run contrary to the contentions raised by the parties to the suit. Hence, prima facie , this Court is of the considered view that the

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attempt of the petitioner of admitting the registered partition deed dated 09.01.2004 and denying the registered sale deed dated 09.01.2004 appears to be not correct and made with an intention to defeat the right of respondent No.13 and to protract the suit. It is open for the Trial Court to exercise its discretion under Section 73 of the Indian Evidence Act, 1872 by comparing the signature, photographs, etc. on the disputed as well as admitted documents and record its finding while adjudicating the suit.

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The Trial Court has recorded a categorical finding that the parties to the proceedings have adduced sufficient evidence in the suit and such evidence is sufficient to decide the controversy involved in the suit. This Court do not find any error or infirmity in the aforesaid finding recorded by the Trial Court while rejecting the application. The petitioner - plaintiff has not placed any material before this Court to justify her claim that the sale deed dated 09.01.2004 is by impersonation as addition material in the present application. Hence, the application seeking

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appointment of the Court Commissioner has no merit. At this stage, there is no justification or reason for the petitioner - plaintiff to seek for appointment of Court Commissioner for comparing the signature and photograph alleged to be admitted and alleged to be not admitted in Ex.P2, Ex.D1 and Ex.P3. The petitioner - plaintiff is having a burden to prove her plea before the Trial Court by proper and cogent evidence. Hence, the Trial Court has rightly recorded the finding that voluminous records are available to decide the controversy in suit, this Court do not find any error in the said finding.

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For the aforementioned reasons, this Court do not

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find any reason to interfere with the impugned order.

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Accordingly, the petition is dismissed.

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Sd/JUDGE

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Smt Radha v. Smt Venkatamma

Case brief

What is this about?

What did the court decide?

Smt Radha v. Smt Venkatamma

Case brief

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