Sri K Byregowda Vs Muniyappa Since Dead by His Lrs Smt Sarojamma

THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.07.2024 PASSED IN OS NO.184/2013 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKABALLAPURA, DISMISSING THE SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL JUDGMENT

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This appeal by the plaintiffs in O.S.No.184/2013 is directed against the impugned judgment and decree, whereby the said suit filed by the appellants-plaintiffs for specific performance and other reliefs in relation to the suit schedule immovable properties was dismissed by the Trial Court.

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Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record.

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A perusal of the material on record will indicate that the

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appellants-plaintiffs instituted the aforesaid suit against the aforesaid respondents-defendants interalia contending that the original defendant has executed the sale agreement dated 03.11.2011 in favour of the appellants-plaintiffs and since the respondents-defendants did not come forward to perform their contract and register the sale deed in their favour, the appellantsplaintiffs sought for decreeing of the suit. During the pendency of the suit, the original defendant passed away and his legal representatives were brought on record, who filed their written statement interalia disputing the various contentions put forth by the appellants/plaintiffs. In fact, respondents-defendants denied and disputed the alleged sale agreement dated 03.11.2011 and also contended that the signatures said to be contained in the said agreement was not that of the original defendant and was forged /fabricated at the instance of the appellants/plaintiffs. Pursuant to the pleadings of the parties, the Trial Court framed the following issues:

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1) Whether the plaintiffs prove that, the defendants executed an agreement of sale on 03.11.2011

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agreeing to sale the suit schedule Rs. 13,62,000/-? property for

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2) Whether the plaintiffs prove that, the defendants have received Rs. 13,00,000/-as advance amount?

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3) Whether the plaintiffs prove that, they are ready and willing to perform their part of contract?

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4) Whether the defendant proves that, the agreement is a created and forged document?

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5) Whether the plaintiffs are entitled for the relief as prayed for?

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6) What order or decree?

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On behalf of the appellants, three witnesses were

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examined as PWs-1 to 3 and marked documentary evidences at Exs.P-1 to P9. Similarly, on behalf of the defendants, three witnesses were examined as DWs-1 to 3 and marked documentary evidences at Exs.D-1 to D49, pursuant to which the Trial Court passed the impugned judgment and decree dismissing the suit, which is assailed in the present appeal.

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A perusal of the material on record will indicate that in addition to the oral and documentary evidences, defendant filed an application under Order XXVI Rule 10(A) of CPC disputing the

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alleged disputed signature at Ex.P1 with that of their admitted signature. In pursuance of the said application, Trial Court passed an order dated 16.02.2023 and the Hand Writing Expert submitted a report coming to the conclusion that it has not been possible to express the opinion on authorship of questioned signatures in comparison with standard signatures. Subsequent to the report of the first Hand Writing Expert, respondent filed one more application requesting the Trial Court to appoint one more Hand Writing Expert. By order dated 20.11.2023, the Trial Court appointed another Hand Writing Expert. Pursuant to the same, second Hand Writing Expert also submitted his report. However, second Hand Writing Expert opined that the characteristics of the questioned signatures found in suit agreement were not that of the signature found in the sale deed, mortgage deed, vakalaths, written statement of the defendant. Upon the second Court Commissioner/Hand Writing Expert submitting his opinion in favour of the defendant against the appellants as stated supra, the appellant filed statement of objections and sought for permission to cross-examine the expert. However, since the appellants-plaintiffs did not pay the requisite fee to summon the second Hand Writing Expert/Court Commissioner, the Trial Court proceeded to pass the impugned judgment and

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decree by accepting the second Court Commissioner Report and rejecting the claim of the appellants-plaintiffs by holding as under:

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“42. Here in this case, during the pendency of suit in order to prove that the alleged agreement of sale is created document, the defendants have filed an application i.e., IA.No.24 U/o XXVI Rule 10(A) of CPC and Section 45 of Evidence Act to get expert opinion. Thereafter, this Court has allowed the said application filed by the defendant and as per the order of this Court dated 16.02.2023, the expert has submitted his report wherein the expert has expressed his opinion that, it has not been possible to express the opinion on authorship of questioned signatures marked as Q1 to Q3 in comparison with standard signatures marked as Al to A16 since showing difference in pattern of executions. Thereafter, the legal heirs of defendants have filed another application U/o XXVI Rule 10(A) of CPC i.e., I.A.No.29 for further expert opinion. Thereafter, this Court allowed the said IA.No.29 and as per the order of this Court, the expert of Shashavathi Forensic Lab has submitted his report.

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43. To the said report, the plaintiffs have filed objection but, the defendants have not filed any objection to the expert opinion. I have perused the same. The expert has expressed his opinion in the second report that, on the cumulative effect of all the above observations taken together, the characteristics of the questioned signatures (Q1-Q3) are not observed in any of the known signatures (K1-K11). Hence, I am of the opinion that, the author of the

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questioned signatures (Q1-Q3) is not the author of any of the known signatures (K1-K11). The questioned signatures (Q1-Q3) are a result of free hand forgery.

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44. Therefore, from the expert report it appears that, the signature appears on agreement of sale i.e., questioned signatures are forged signature. Though the plaintiffs have filed objection to expert opinion, they have not taken steps to examination of the expert by depositing the remuneration fees which fixed by this Court. Therefore, in view of above discussion it is held that, the plaintiffs have failed to prove that the defendant had executed an agreement of sale dated 03.11.2011 and agreed to sell the suit schedule property for Rs.13,62,000/- and further they have failed to prove that. the defendant had received advance sale consideration amount of Rs. 13,00,000/- on the date of agreement of sale. Further, the plaintiffs have failed to prove that, they have always been ready and willing to perform their part of contract. Therefore, the above citation, relied by the plaintiffs are not applicable to the case on hand. Per contra, the defendants have proved that, the alleged agreement of sale dated 03.11.2011 is a created and forged document. Hence, I have answered Issue No.1 to 3 in the Negative and Issue No.4 in the Affirmative.”

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As can be seen from the aforesaid findings recorded by

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the Trial Court, the omission on the part of the appellants to crossexamine the second Court Commissioner in view of his report,

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which was undisputedly rendered in favour of the respondentsdefendants against the appellants-plaintiffs, the said circumstance has been made the basis to the Trial Court to dismiss the suit filed by the appellants-plaintiffs.

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In this context, learned counsel for the appellants submits that if the impugned judgment and decree is set aside and the matter is remitted back to the Trial Court for reconsideration afresh in accordance with law, the appellants shall cross-examine the said Court Commissioner/Hand Writing Expert on the date to be fixed by the Trial Court, which may be directed to dispose of the suit within a stipulated time frame.

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Per contra, learned counsel for the respondents submits that the said request of the appellants may be accepted on payment of exemplary cost and issuing certain directions to cross examine the said hand writing expert without seeking adjournment under any circumstances, whatsoever.

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In view of the aforesaid facts and circumstances of the

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case and joint submissions made by both sides and in the light of the findings of the Trial Court in rejecting the claim of the appellants on the basis of the second Court Commissioner’s second report,

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which was in favour of the respondents-defendants and against the appellants-plaintiffs, without expressing any opinion on the merits/demerits of the rival contentions, I deem it just and appropriate to set aside the impugned judgment and decree and remit the matter back to the Trial Court for reconsideration afresh in accordance with law by issuing certain directions.

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In the result, I proceed to pass the following:

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ORDER

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i) The appeal is hereby allowed.

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ii) The impugned judgment and decree dated 29.07.2024 passed in O.S.No.184/2013 on the file of I Additional Senior Civil Judge and JMFC, Chikkaballapura, is hereby set aside.

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iii) Appellants and respondents undertake to appear before the Trial Court on 28.04.2025 without awaiting further notice from the Trial Court.

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iv) On that day, the appellant shall deposit the requisite fee for issuing summons to the Second Court Commissioner for the purpose of appearing before the Trial Court and tendering

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himself for examination/cross-examination by the parties.

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v) The parties are hereby directed to examine/ cross-examine the said Court Commissioner/Hand Writing Expert on any date to be fixed by the Trial Court without seeking any adjournment under any circumstances whatsoever.

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vi) The appellants shall pay cost of Rs.50,000/- to the respondents-defendants on 28.04.2025 before the Trial Court.

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vii) Registry of this Court is directed to refund the entire Court fee of Rs.80,225/- paid on the memorandum of appeal back to the appellants forthwith without any delay.

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viii) The Trial Court is directed to dispose of the suit within a period of four months from 28.04.2025.

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ix) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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MDS

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List No.: 1 Sl No.: 72

Sri K Byregowda v. Muniyappa Since Dead by His Lrs Smt Sarojamma

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Sri K Byregowda v. Muniyappa Since Dead by His Lrs Smt Sarojamma

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