Sri.M.S. Krishna Setty Vs Sri.S. Kempanna S/O Late K Shankarappa

SMT P SANDHYA BALAJI W/O P BALAJI BABU AGED ABOUT 54 YEARS R/O NO.61/62, EAST PARK ROAD BEHIND M L A SCHOOL, 15^TH CROSS MALLESHWARAM BENGALURU-560 003.

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SMT S SHOBHA SRINIVAS W/O S SRINIVAS AGED ABOUT 51 YEARS SRI KRISHNA FRAME WORKS NO.93, BRAHMIN STREET RES:"SRI RAMA NILAYA" 3RD CROSS, SATHYANARAYANAPET BESIDES NAGAMMA SCHOOL BELLARY-583 101.

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…PETITIONERS

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(BY SRI. G S VENKAT SUBBA RAO., ADVOCATE)

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AND:

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SRI.S. KEMPANNA S/O LATE K SHANKARAPPA REPORTED DEAD DURING THE PENDENCY OF THE SUIT REPRESENTED BY HIS LEGAL REPRESENTATIVES RESPONDENTS 2 TO 4

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SMT BANASHANKARI D/O LATE S KEMPANNA AGED ABOUT 41 YEARS

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SRI K RAGHAVENDRA S/O LATE S KEMPANNA AGED ABOUT 39 YEARS

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SMT YASHODAMMA D/O LATE S KEMPANNA AGED ABOUT 37 YEARS ALL ARE R/O SIDDAPURA GATE

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HC-KAR

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KASABA HOBLI MADHUGIRI TALUK TUMKUR DISTRICT-572 132.

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…RESPONDENTS

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(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO: QUASH THE IMPUGNED ORDER DATED 23/01/2024 PASSED ON IA NO. 21 FILED UNDER ORDER 26 RULE 10A OF CPC IN O.S.NO. 460/2008 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC, MADHUGIRI, VIDE ANNEUXRE-A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL ORDER

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This writ petition is by the plaintiffs in O.S.No.460/2008 on the file of Additional Civil Judge and JMFC, Madhugiri, aggrieved by the order dated 23.01.2024 passed on I.A.No.XXI filed by the petitioner/plaintiff herein under Order XXVI Rule 10(A) of CPC.

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HC-KAR

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The above suit is filed by the plaintiff/petitioner seeking relief of specific performance of an agreement of sale dated 03.05.1994 directing the defendants/respondents herein to execute and register deed of sale in respect of the suit schedule property and to deliver possession of the same. Written statement is filed by the defendant No.1 specifically denying the plaint averments. An endorsement apparently came to be made on the said agreement on 01.05.1996 by the defendant No.1. The said endorsement and the signature found thereon has been seriously disputed and denied by the defendants at paragraph 10 of the written statement. Parties went into trial. Matter is set down for arguments. It is at this juncture, present application came to be filed by the plaintiffs seeking reference of the aforesaid endorsement and signature found on the document dated 01.05.1996 produced at Ex.P1 along with written statement, vakalath filed by defendant No.1 and sale deed dated 02.05.1994 to the experts of Forensic Department for scientific examination/investigation to compare the admitted and disputed signature and to submit the report thereon.

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The trial Court considering the objections filed by the defendants dismissed the application with cost on the premise

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HC-KAR

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that the said application has been filed belatedly and that the evidence available on record was sufficient to adjudicate the dispute between the parties. Aggrieved by the same petitioners/plaintiffs are before this Court.

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Sri.G.S.Venkat Subbarao, learned counsel for the petitioners/plaintiffs reiterating the grounds urged in the memorandum of petition submits that the requirement of filing an application was in view of denial by the defendants of the signature of defendant No.1 particularly found on the endorsement dated 01.05.1996 while the signatures on the other portion of the document has not been denied. He submits verification of this was essential for substantial and effective disposal of the lis between the parties. He submits that the verification of the signatures is imperative inasmuch as on the very same day of execution of the said agreement, defendants had executed a deed of sale dated 02.05.1994 registered on 03.05.1994. But since the admitted signatures are available on record no impediment would be caused to the defendants if the endorsement portion of the agreement is sent for verification. Hence seeks for allowing of the petition.

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HC-KAR

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Per contra, Sri.G.Balakrishna Shastry, learned counsel for the respondents/defendants justifying the order passed by the trial Court submits that the suit is filed in the year 2008 and the agreement is of the year 1994. That written statement in the matter was filed on 12.02.2009. PW2 who is one of the witnesses to the agreement was examined on 28.10.2011. In the cross examination specific suggestions denying the signature found on the agreement were made. He submits instant application came to be filed on 09.10.2019 which is after lapse of more than a decade. Such a belated attempt to fill the lacunae cannot be allowed. He submits in a collateral suit filed by the defendants against the plaintiff herein in O.S.No.99/2009, even plaintiff has denied his signature on reconveyance agreement dated 02.05.1994 which was simultaneously executed between the parties with the execution of the suit agreement. He submits that the plaintiff refused reference of his signature for verification in the said suit filed by the defendants. As such it is not open for the plaintiff to seek reference of signature for verification of the collateral document in his suit. Such a double standard on the

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HC-KAR

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part of the plaintiff would disentitle him seeking relief of this nature. Hence, seeks for rejection of the petition.

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Heard and perused the records.

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The transaction between the parties having been

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entered into on 03.05.1994 is not in dispute. There is no dispute that the defendants had executed sale deed dated 02.05.1994 which was registered on 03.05.1994 which according to the defendants is a nominal one (marked as Exhibit D2). It is further case of the defendants that while obtaining signatures on the said deed of sale dated 02/03.05.1994, plaintiff/petitioner herein has clandestinely obtained signatures on the document now produced as agreement of sale dated 03.05.1994 marked as Ex.P1.

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In other words there is no dispute with regard to the signatures found on both the documents i.e., Ex.P1 and Ex.D2. The dispute is only with regard to endorsement and signature on the purported endorsement which according to the plaintiff was made on 01.05.1996 and according to defendants is created and concocted. The outcome of the suit is invariably based on determination of veracity or otherwise of the said

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HC-KAR

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endorsement and the signature. Mere availability of other evidence may not substitute requirement of scientific verification and investigation of disputed signatures particularly when the court lacks expertise in this regard.

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Since the signatures found thereon is/are disputed, in the light of the availability of admitted signature on record, this Court is of the considered view in the interest of justice and for the effective disposal of the lis between the parties, said signatures be referred for verification by the Handwriting Expert. This Court do not see any reason or any prejudice being caused to the defendants if determination in this regard is made. Merely because the plaintiff had denied reference of his signature on a document in a collateral proceedings cannot be ground to deny the relief in this proceedings. The purpose in any event is to ascertain the truth of the matter which would be made available for effective disposal of the suit by the trial Court.

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In that view of the matter, petition stands allowed. Application in I.A.No.XXI filed by the plaintiffs under Order XXVI Rule 10(A) of CPC in O.S.No.460/2008 is allowed.

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HC-KAR

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Trial Court shall refer the disputed endorsement dated 01.05.1996 and signature found thereon to be compared with admitted signature found on Ex.P1 as well as vakalath, written statement and deed of sale dated 02.05.1994 registered on

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03.05.1994 produced at Ex.D2.

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Sd/(M.G.S. KAMAL) JUDGE

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SBN List No.: 1 Sl No.: 16

Sri.M.S. Krishna Setty v. Sri.S. Kempanna S/O Late K Shankarappa

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Sri.M.S. Krishna Setty v. Sri.S. Kempanna S/O Late K Shankarappa

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