Sri S N Parameshwara Vs Sri P K Sham

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NC: 2026:KHC:2195 WP No. 20194 of 2025

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF JANUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 20194 OF 2025 (GM-CPC)

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BETWEEN:

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SRI S N PARAMESHWARA S/O LATE. NARASIMHAIAH AGED ABOUT 81 YEARS REPRESENTED BY HIS SPECIAL POWER OF ATTORNEY HOLDER SRI. S. P. VENKATESH S/O S. N. PARAMESHWARA AGED ABOUT 45 YEARS

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BOTH R/AT. 58, 6^TH CROSS, 3^RD STAGE, 4^TH BLOCK, SHAKTHIGANAPATHINAGAR, BASAWESHWARANAGAR, BENGALURU – 560 079.

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…PETITIONER

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(BY SRI. MAHESHKIRAN SHETTY.S, ADVOCATE)

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AND:

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Digitally signed by CHANDANA B M

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Location: High Court of Karnataka

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SRI P K SHAM S/O LATE P. S. KRISHNA MURTHY AGED ABOUT 52 YEARS R/AT. NO. 525, ANIKETHANA MAIN ROAD, KUVEMPU NAGAR, MYSORE – 570 023.

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(BY SRI. A.MADHUSUDHANA RAO, ADVOCATE)

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…RESPONDENT

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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 OR ANY OTHER APPROPRIATE WRIT OR DIRECTION TO QUASH THE ORDER DATED 23.04.2025 PASSED BY THE IV ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU (CCH-21) IN IA NO. 12 IN O.S. NO. 25017/2017 AT ANNEXURE-A.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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NC: 2026:KHC:2195 WP No. 20194 of 2025

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HC-KAR

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

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ORAL ORDER

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This petition by the defendant in O.S.No.25017/2017 is directed against the impugned order dated 23.04.2025 passed on I.A.No. 12 by the IV Addl. City Civil and Sessions Judge, Bangalore, whereby the said application filed by the respondentplaintiff under Order 26 Rule 10A CPC to refer the admitted signatures of the defendant - S. N. Parameswara on Exs. P1 and P3 for comparison with his disputed signatures on Exs.P4, P5, P6, P9, P10 and P16 and also to refer the admitted signature of DW-1 – S.P.Venkatesh, who is the son of defendant, with his disputed signatures on Exs.P8 and P9 was allowed by the trial Court.

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Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

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A perusal of the material on record will indicate that the respondent-plaintiff instituted the aforesaid suit against the petitioner-defendant for specific performance of an alleged sale agreement dated 10.06.2016 and for other reliefs. The said suit having been contested by the petitioner-defendant, the respondent-

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NC: 2026:KHC:2195 WP No. 20194 of 2025

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plaintiff examined himself as PW-1 and three witnesses and documentary evidence at Exs.P1 to P28 were marked on his behalf and they were cross-examined by the petitioner-defendant. Thereafter, the petitioner examined his son as DW-1, who during the course of his cross-examination disputed the signatures of his father (defendant) on Exs.P4, P5, P6, P9, P10 and P16; so also, DW-1 disputed his own alleged signatures on Exs.P8 and P9 produced by the plaintiff. Under these circumstances, the respondent-plaintiff moved the instant application I.A.No.12 under Order 26 Rule 10A CPC for appointment of Handwriting expert to compare the admitted signatures of the defendant on Exs.P1 and P3 with his disputed signatures on Exs.P4, P5, P6, P7, P9, P10 and P16 as well as to compare the admitted signatures of DW-1 with his disputed signatures found on Exs.P8 and P9.

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By the impugned order, the trial Court came to the conclusion that since the material on record contained both the admitted and disputed signatures of both the defendant as well as his son DW-1, in order to elucidate the issues in controversy between the parties, it would be just and appropriate to refer the

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NC: 2026:KHC:2195 WP No. 20194 of 2025

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disputed signatures for comparison with the admitted signatures to

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a Handwriting expert by holding as under;

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ORDERS ON I.ANO.XII

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The Applicant/Plaintiff has filed IA No.XII under Order XXVI Rule 10(A) of the CPC with a prayer to refer the admitted signatures of the defendant in Ex.P1 and P3 for comparison with disputed signatures of the defendant in Ex.P4,5,6,9,10 and 16 and also to refer the admitted signature of DW.1 found in the evidence recorded before this court with disputed signature of DW.1 in Ex.P8 and 9 to the handwriting expert. In the annexed affidavit, the applicant has stated that he has filed this suit for specific performance of contract against the defendant based on agreement for sale dated 10.06.2016 executed by the defendant in his favour. The defendant had agreed to sell the suit schedule property for sale consideration of Rs.78 lakh and received part of sale consideration of Rs.64 lakh. He is ready to pay the balance Rs.14 lakhs. The defendant is making demand of additional payment of Rs.30 lakh. During the course of evidence, he produced all the relevant documents in support of his case including the subsequent agreements executed by the defendant. The defendant did not get examined himself in this suit, but he sent his son as a power of attorney holder, who got examined as DW.1. During the cross-examination of DW.1, when

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Ex.P1 and P3 were confronted, he admitted the signature of the defendant over there. However, he disputed the signatures of the defendant on Ex.P4,5,6,9, 10 and 16 and he also gone to the extent of disputing his own signatures on Ex.P8 and P9. DW.1 in his cross- examination has stated, he has no objection to refer the disputed signatures of the defendant and himself to handwriting expert. For the proper and effective adjudication of the controversy involved in the suit, the disputed signatures along with the admitted signatures have to be sent to handwriting expert and it will assist the court in proper adjudication of the suit. Further, the plaintiff has stated that DW.1 in his cross-examination disputed his own signature appearing in Ex.P8 and P9. Ex.P8 is the postal acknowledgment card and Ex.P9 is the deed of confirmation, wherein DW.1 allege to have signed as a witness. The said two documents were confronted to DW.1 in his cross-examination and he denied its execution and he denied his signatures on Ex.P8 and P9 in his cross-examination at para-29. That being the case, the plaintiff must be permitted to send those documents for comparison with the admitted signature of DW.1 in the affidavit filed before the court. Hence, prayed to allow the application.

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2.The learned counsel for the defendant has filed objection to the application and contended that as per Section 73 of the Indian Evidence Act, the court has every power to compare the signatures with the

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NC: 2026:KHC:2195 WP No. 20194 of 2025

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admitted or approved signature. Therefore, there is no need to send the signatures for comparison to the handwriting expert. Further, the defendant has disputed the execution of Ex.P1-sale agreement, therefore, there is no need to send that document for comparison. When the document itself is disputed, no purpose will be served by comparison of the signature. Admission of the signatures does not imply the admissions of the contents of the document or its execution. Therefore, he prayed to reject the application.

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3. Heard and perused the records.

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4. Points for consideration of this Court are:

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1. Whether the applicant/plaintiff has made out valid grounds to allow the application and send the disputed signatures and admitted signatures of the defendant and DW.1 to the handwriting expert?

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2. What order?

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5. The above point is answered as under:-

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REASONS

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6. PointNo.1:-

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The plaintiff has filed the suit against the defendant for the relief of specific performance of the agreement of sale dated10.06.2016 and in the alternative for refund of Rs.64 lakhs with interest at 18% per annum. The defendant appeared and filed

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written statement and denied the execution of the loan documents and contended that the plaintiff had taken signatures on blank documents and cheque leaves for security of the loan transaction. Based on the pleadings, issues were framed. On behalf of the plaintiff, he himself got examined as PW.1 and Ex.P1 to P28 were marked. He also got examined two other witnesses in support of his case as PW.2 and 3. The defendant has appointed his son as power of attorney holder who was examined as DW.1and got marked and Ex.D1toD19. When the case was set down for argument, the instant application came to be filed.

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7. Having considered rival contentions of the parties, this court has gone through the records carefully. The main contention of the PW.1 is that, even though the defendant had executed the agreement for sale and other connected documents subsequently and received major portion of the sale consideration of Rs.64 lakhs, out of Rs.78 lakhs, the defendant has falsely denied the entire transaction and receipt of money. Under such circumstances, burden lies on him to prove the due execution of the agreement for sale and other allied documents which he has produced before this court. He also submitted that though he confronted those documents to DW.1 in the cross-examination, he denied the signatures of his father. Of course, DW.1 in his cross- examination admitted the signatures of

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his father on Ex.P1, though he disputed the document. However, in his subsequent crossexamination he has denied the signatures of his father on Ex.D4 the letter dated 01.06.2016 said to have been written by the defendant in his handwriting to the plaintiff.Ex.D5 the sale agreement dated 10.06.2016, Ex.P6 notice dated 03.12.2016, Ex.P9 deed of reconfirmation dated 09.12.2016, Ex.P10& 16 letters dated 16.12.2016 alleged to have been written by the defendant to the plaintiff in his handwriting.

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8. In this suit, the peculiar situation is that the defendant did not enter into the witness box, so the plaintiff could not confront those material documents to defendant directly as he is alleged to be the author of said documents. Even after the cross-examination of DW.1,the defendant did not come forward to lead evidence. When those documents were confronted to DW.1, son of the defendant, he totally denied the signatures of his father on those documents. Under such circumstances, this court is of the considered view that, the plaintiff is left with no option, but to get expert's opinion to prove his case. Since the burden lies on the plaintiff to prove the issues, he should be given fair opportunity to prove his case. It is his legal right to prove the documents produced before the court with cogent evidence. Since DW.1 has denied the signatures of his father on the said documents

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and defendant did not enter into witness box, definitely the re quest of the plaintiff is reasonable and justified.

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9. The objection of the defendant is two fold. Firstly, learned counsel defendant would contend that the court has the power to compare the signature under Section 73 of the Indian Evidence Act and there is no need to refer to the handwriting expert. No doubt, the court has the power under Section 73 of the Indian Evidence Act to compare the admitted signature with the disputed signature. But that power should be exercised sparingly and in exceptional circumstances, where there is no other option. But when a party to suit makes an application requesting the court to send the admitted and disputed signatures for comparison to the handwriting expert, definitely that application has to be allowed instead of the court venturing to exercise its power under Section 73 of the Indian Evidence Act. Therefore, that objection is totally untenable.

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10. The second objection is that just because the signatures are proved, that is not proof of the execution of the document. Now, we are not at the stage of proof of document. If at all DW.1 had admitted the signatures of his father on the said documents, then the matter would have been different. Since he has disputed the signatures which is the first stage to prove the document, the plaintiff has no other option, but to send it to the handwriting expert. Of course,

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after proof of signature, the proof of document is the next stage which the plaintiff has to prove independently.

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11. For all these reasons, this court is of the considered view that if the application is not allowed, it will cause great prejudice to the plaintiff. In fact, in his cross-examination at page-30, para-37, DW.1 has categorically stated that he has no objection to send his signatures and his father's signatures appearing on the documents produced before the court to a handwriting expert to get the opinion. This admission again supports the request of the plaintiff and contradicts the objection of the defendant. Hence, the application has to be allowed. Accordingly, the above point is answered in the ‘ affirmative’.

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12. Point No.2:-

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Having thus discussed in detail, this court proceeds to pass the following:

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ORDER

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I.A No.XII filed by the applicant/plaintiff under Order XXVI Rule 10(A) of CPC is hereby allowed.

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The request for appointment of court commissioner for comparison of disputed signatures with admitted signatures is allowed. The admitted signatures of defendant No.1 in Ex.P1 and P3 shall be sent to handwriting

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expert for comparison with his disputed signatures on Ex.P4,5,6,9,10 and16.

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Likewise, the disputed signatures of DW.1 on Ex.P8 and P9 shall be sent to the handwriting expert along with the admitted signatures of DW.1 appearing on the affidavit filed by him before this court.

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In addition, the defendant and DW.1 are directed to give their specimen signatures before the court on the next date of hearing in the open court.

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The plaintiff shall pay the commissioner fee tentatively at Rs.7,000/- and he shall pay any balance amount as directed by the court.

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Learned counsel for both the parties are directed to file a memo suggesting the commissioner/ handwriting expert by next date of hearing.

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Call on 03.05.2025

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No order to cost.”

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Upon reconsideration, re-evaluation and re-appreciation

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of the entire material on record, I am of the considered opinion that the trial Court correctly and properly considered and appreciated

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the material on record which clearly indicated that while DW-1 admitted the signatures of his father (defendant) on Exs.P1 and P3, DW-1 disputed the alleged signatures of his father on Exs.P4, P5, P6, P9, P10 and P16; similarly, DW-1 who undisputedly affixed his signature on his deposition after being examined as DW-1 in the suit before the trial court, also disputed his alleged signatures on Exs.P8 and P9 produced by the plaintiff.

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Under these circumstances, having regard to the material on record containing both disputed and admitted signatures of both DW-1 and his father (defendant), the trial Court was fully justified in allowing the instant application by passing the impugned order which cannot be said to suffer from any illegality or infirmity warranting interference by this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India as held by the Apex Court in the cases of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423, K.P. Natarajan Vs. Muthalammal – AIR 2021 SC 3443 and Mohamed Ali Vs. V. Jaya & others – (2022) 10 SCC 477 . It is needless to state that since the petitioner would have an opportunity to file objections to the report of the Handwriting expert and also examine/cross-examine him, if he so

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desires, it cannot be said that any prejudice would be caused to the petitioner-defendant by the impugned order directing appointment of Handwriting expert. Accordingly, I do not find any merit in the petition and the same deserves to be disposed of by issuing certain directions.

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7. In the result, I pass the following:

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ORDER

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(i) Petition is hereby disposed of without interfering with the impugned order.

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(ii) Liberty reserved in favour of both parties to file objections to the report of the Handwriting Expert/Court Commissioner and examine/cross-examine him, if they so desire.

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(iii) All rival contentions on all aspects of the matter including the report of the court commissioner, his report, his evidence etc., are kept open and no opinion is expressed on the merits/demerits of the rival contentions.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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Srl.

Sri S N Parameshwara v. Sri P K Sham

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Sri S N Parameshwara v. Sri P K Sham

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