Smt Sujathamma Vs Sri B Aswathanarayana Gowda

SRI. B. ASWATHANARAYANA GOWDA AGED ABOUT 50 YEARS S/O LATE BASAPPA R/AT. PAPANAHALLI VILLAGE CHANNARAYAPATHNA HOBLI DEVANAHALLI TALUK BENGALURU RURAL DIST-562110.

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…RESPONDENT

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(BY SRI. GURUVA REDDY N, ADV.,)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE ORDER DTD 09.01.2020 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, AT DEVANAHALLI, AT ANNX-F IN O.S.NO.769/2006, AND REJECT THE I.A.NO.13, BY ALLOWING THE PRESENT PETITION & ETC.

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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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HC-KAR

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL ORDER

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This petition is filed seeking following reliefs:

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"a) Issue a writ in the nature of certiorari quashing the Order dated 09.01.2020 passed by the Senior Civil Judge & JMFC, at Devanahalli, at Annexure-F in OS.No.769/2006, and reject the IA.No.13, by allowing the present petition;

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b) Grant costs; and

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c) Such other reliefs as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case and in the interest of justice and equity."

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Sri.Abhinav Ramanand A., learned counsel

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appearing for the petitioner submits that the respondent filed a suit for relief of specific performance. After adducing the evidence in order to overcome the evidence of PW.2 and PW.3, the respondent/plaintiff filed an application under Order XXVI Rule 10A of the Code of Civil Procedure, 1908 (for short 'CPC') seeking to refer the agreement of sale dated 25.03.2004 to the handwriting expert to verify the signature of the petitioner/defendant

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with the admitted signatures along with the vakalath, written statement, chief evidence of the defendant and

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other relevant documents. It is submitted that under the impugned order, the trial Court has not assigned any valid reasons to allow the application. The reason assigned by the trial Court is that the defendant denied the agreement, the Court has framed issues and parties have led the evidence. It is submitted that it is not what is expected from the trial Court when it considers the application for expert's evidence in such a manner. It is further submitted that the trial Court though required to exercise the discretion judiciously, is required to assign the reason as to why the handwriting expert’s opinions are required and unless there is any ambiguity in the evidence on record, the trial Court cannot allow such application on mere asking. It is also contended that PW.2 and PW.3, who are claiming to be the signatories to the agreement of sale, have not supported the case of the plaintiff to the extent that they have not seen the plaintiff affixing the signature on the agreement of sale and in order to overcome such lapse in evidence, the present application is filed, which is

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required to be rejected by setting aside the impugned order. Hence, he seeks to allow the petition.

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Per contra, Sri.Guruva Reddy N., learned

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counsel appearing for the respondent supports the impugned order of the trial Court and submits that the petitioner in the written statement has categorically denied the execution of the agreement of sale, stating that it was created, forged etc. When such denial is made in the written statement, it is imperative to find out as to whether the defendant has signed the agreement of sale or not. Any amount of oral evidence or the documentary evidence would not be sufficient to prove the case before the trial Court when a specific denial is made by the other side with regard to the subject document. Hence, he seeks to dismiss the writ petition.

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I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent and meticulously perused the material

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available on the record. I have given my anxious consideration to the submissions advanced on both sides.

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The pleading and material on record indicate that the respondent/plaintiff has filed OS.No.769/2006 for relief of specific performance of the agreement of sale dated 25.03.2004. The petitioner/defendant filed a detailed written statement denying the averments made in the plaint. At paragraph No.3 of her written statement, it is specifically averred that the defendant never executed any agreement of sale dated 25.03.2004 in favour of the plaintiff and the alleged agreement is false and forged. The trial Court has framed the issues and parties led the evidence. The evidence of PW.2 and PW.3 which has been pointed out by the learned counsel for the petitioner indicates that in cross-examination the aforesaid witnesses have said that they have signed the agreement in the village. Be that as it may, the evidence on record is very much available with regard to the subject matter of the agreement of sale. After the conclusion of the trial the

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respondent filed an application under Order XXVI Rule 10A

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of CPC seeking to refer Ex.P1-agreement of sale dated 25.03.2004 to the handwriting expert to find out the correctness or otherwise of the contentions urged by the petitioner in the written statement with regard to the signature found in the agreement. The said application was opposed by the petitioner. The trial Court allowed the same by recording the finding that the defendant denied the agreement and the very signature appeared in the agreement of sale; wherefore, examination of the admitted and disputed signatures are helpful for the proper adjudication of the matter.

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In my considered view, the trial Court has fully justified in allowing the said application. The application filed by the respondent/plaintiff seeking to refer the disputed document to the handwriting expert would aid the trial Court to arrive at a just conclusion with regard to the correctness of the claim made by one party and denied by the other party. The contention of the petitioner that

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the present application is filed to overcome the evidence of PW.2 and PW.3 cannot be accepted. The oral evidence is already available on record and the trial Court is required to compare the oral evidence on record with the opinion of the handwriting expert, which would aid the trial Court in deciding the dispute between the parties in a proper way. This Court in the case of Shadaksharappa v. Kumari Vijayalaxmi and Others¹ held that when the party disputes the instrument or affixing of the signature, it would be necessary to refer such instrument to the handwriting expert, and denial of such opportunity amounts to denial of leading evidence. Hence, in my considered view, the trial Court though not assigned the detailed reasons, has rightly come to the conclusion that the disputed agreement of sale dated 25.03.2004 is required to be sent for a handwriting expert to find out if the signature found on the said instrument is of the defendant or not, along with the admitted signature of the

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12023 SCC OnLine KAR 53

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