Allowed

Thoppasseri Jaleel v. Deepesh

Kerala HC20 Sept 2016OP(C)/2029/2016

Case brief

AI extract

What is this about?

The High Court exercised supervisory jurisdiction under Article 227 to stay an order directing the petitioner to appear for providing a specimen signature. It held that admitted signatures within the disputed agreement and defendant's court documents are sufficient for the expert to compare handwriting, rendering the personal appearance unnecessary for procedural correctness.

What did the court decide?

Interim order of stay vacated; Registry to communicate judgment to lower court.

Thoppasseri Jaleel Vs Deepesh — Contract and Commercial Disputes | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

¶4

TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938

¶5

OP(C).No. 2029 of 2016 (O) --------------------------IA NO.450/2016, OS. NO.54/2011, SUB COURT TIRUR

¶6

-------------

¶7

PETITIONER:

¶8

THOPPASSERI JALEEL, S/O. ALAVIKUTTY, OLAKKARA AMSON DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SAKKEENA K.V., W/O. JALEEL THOPPASSERY, KODOOR HOUSE P.O. PAREAMBIL PEEDIKA, OLAKARA AMSOM AND DESOM, TIRURNAGADI TALUK, MALAPPURAM DISTRICT.

¶9

BY ADVS.SRI.K.P.SUDHEER SRI.Y.JAFAR KHAN

¶10

RESPONDENT:

¶11

DEEPESH,

¶12

S/O. MATHANCHERRI RADHAKRISHNAN NAIR, OLAKARA AMSOM ENAVOOR DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN- 676 306.

¶13

BY ADV. SMT.N.DEEPA

¶14

THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

K.V.

¶16

OP(C).No. 2029 of 2016 (O)

¶17

APPENDIX

¶18

PETITIONER(S)' --------------	EXHIBITS ---------
EXT. P1	TRUE COPY OF PLAINT DATED 7.2.2011 IN O.S. NO. 54/2011 ON THE FILE OF THE SUB COURT, TIRUR FILED BY THE RESPONDENT HEREIN.
EXT. P2	TRUE COPY OF SALE AGREEMENT DATED 9.12.2009 ENTERED INTO BETWEEN THE PETITIONER AND THE RESPONDENT.
EXT. P3	TRUE COPY OF WRITTEN STATEMENT DATED 21.3.2011 FILED BY THE PETITIONER HEREIN IN EXHIBIT P1 SUIT.
EXT. P4	TRUE COPY OF THE TRAVELLING TICKET INFORMATION OF THE PETITIONER.
EXT. P5	TRUE COPY OF AFFIDAVIT IN SUPPORT OF I.A. NO. 106/2016 FILED BY THE RESPONDENT HEREIN IN EXT. P1 SUIT.
EXT. P6	TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE PETITIONER IN EXT. P5.
EXT. P7	TRUE COPY OF I.A. NO. 450/2016 FILED BY THE PETITIONER IN O.S NO. 54/2011 ON THE FILE OF THE SUB COURT, TIRUR.
EXT. P8	TRUE COPY OF OBJECTION DATED 29.6.2016 FILED BY THE RESPONDENT IN EXT. P7.
EXT. P9	TRUE COPY OF ORDER DATED 27.7.2016 IN I.A NO. 450/2016 IN O.A. NO. 54/2011 PASSED BY SUBORDINATE JUDGE'S COURT TIRUR.
EXT. P10	TRUE COPY OF CASE DETAILS OBTAINED FROM THE E-COURT.
RESPONDENT(S)' --------------	EXHIBITS NIL ---------

/TRUE COPY/

P.A.TO JUDGE

K.V.

K.RAMAKRISHNAN, J.

========================

¶24

O.P.(C) No.2029 of 2016

¶25

========================== Dated this the 20^th day of September, 2016

¶26

JUDGMENT

¶27

This is a petition filed by the petitioner through his power of attorney holder challenging Ext.P9 order to the extent of directing the petitioner to be present for submitting his standard signature for sending the same for expert opinion along with the disputed document under Article 227 of the Constitution of India.

¶28

It is alleged in the petition that respondent herein filed Ext.P1 suit as O.S No.54 of 2011 on the file of Sub Court, Tirur for specific performance of contract of sale and in the alternate for return of the advance amount. The defendant denied the execution of the document Ext.P2 produced along with the plaint by filing Ext.P3 written statement. Respondent filed Ext.P5 application as I.A No.106 of 2016 for sending Ext.P2 document for expert opinion and petitioner filed Ext.P6 counter affidavit. Ext.P7 is the application filed by the power of attorney as I.A No.450 of 2016 seeking exemption for the appearance of the defendant, who

¶29

O.P.(C) No.2029/ 2016

¶30

¶31

is the petitioner herein and Ext.P8 is the objection filed by the respondent herein to Ext.P7 application. Ext.P9 is the order passed by the court below in I.A No.450 of 2016. Ext.P5 application was allowed by the court below by which the petitioner was directed to appear to subscribe his standard signature to be sent along with the disputed document for expert opinion. When such an order was passed, the petitioner filed I.A No.450 of 2016 for exempting from appearance. But that petition was dismissed by the court below and directed the petitioner to appear for providing his specimen signature for the purpose vide Ext.P9 order. This order is being challenged by the petitioner by filing this petition.

¶32

Heard Sri.K.P.Sudheer, counsel appearing for the petitioner and Smt.Deepa, counsel appearing for the respondent.

¶33

counsel for the petitioner submitted that this Court has by interim order directed the court below to proceed with the process of sending the disputed document for expert opinion along with the admitted documents available before the court, containing the signature of the petitioner and that will be sufficient for the purpose of meeting the requirement of proving

¶34

O.P.(C) No.2029/ 2016

¶35

¶36

the execution of Ext.P2 document.

¶37

On the other hand, counsel for the respondent submitted that when the defendant was examined before the court below, he had denied the signature even in the vakalath and the written statement and that was the reason why the plaintiff was compelled to file application for sending Ext.P2 for expert opinion.

¶38

It is an admitted fact that plaintiff filed Ext.P1 suit as O.S No.54 of 2011 before Sub Court, Tirur for a decree for specific performance of Ext.P2 agreement said to have been executed by the petitioner in favour of the plaintiff and in the alternate for return of advance amount. In the written statement, he had denied the execution of Ext.P2 agreement for sale. His case was that he had given one blank signed paper and one blank paper and misusing that the sale agreement has been fabricated by the petitioner herein. When the signature in Ext.P2 was denied by the defendant when he was in the box, the plaintiff filed I.A No.106 of 2015 for sending Ext.P2 for expert opinion. The court below allowed the application on payment of cost considering the delay in filing the application and also by the same order directed the

¶39

O.P.(C) No.2029/ 2016

¶40

¶41

petitioner to appear for subscribing his specimen signature to be sent along with the disputed document to the expert. Petitioner filed Ext.P7 application through his power of attorney exempting his presence and sending the admitted documents containing his signature for expert opinion. But that was dismissed by the court below by the impugned order.

¶42

When this court has admitted the petition, an interim order was passed, which reads as follows:

¶43

“There will be an interim order of stay of further proceedings in O.S No.54 of 2011 of Sub Court, Tirur. But this order will not prevent the court from sending the disputed document along with documents available in court, that contains the admitted signatures of the defendant namely, vakalath, written statement and affidavits if any filed for comparison by the expert. The order directing the petitioner to be present for providing his specimen signature/present signature alone is stayed by this order. If the petitioner produces admitted signatures of the petitioner during the period at which the disputed document was executed, then court below is also at liberty to send those documents also for comparison.”

¶44

Counsel for the petitioner submitted that he had not

¶45

denied his signature in the vakalath and written statement filed in

¶46

O.P.(C) No.2029/ 2016

¶47

¶48

court. He had produced the power of attorney executed in favour of his wife containing his signature. So all these documents will be sufficient for the purpose of comparison and there is no necessity to obtain fresh specimen signature at present. There is some force in the submission made by the counsel for the petitioner as if the specimen signature is sought for now, there is a possibility of the petitioner putting a different signature cannot be ruled out. What is required is only admitted signature in the documents of the relevant time when Ext.P2 agreement was executed. So that will be sufficient for the purpose of proving the execution of the document and also for comparison of the disputed signature in Ext.P2. Further it is seen from the submissions that petitioner is not denying entire signatures in the document but he is admitting one of the signatures in Ext.P2 and he is denying only signature in the second page of Ext.P2. So, there is already an admitted signature in part of the document Ext.P2 itself, which can be relied on by the expert for the purpose of comparison of the signature in both the pages so as to arrive at a conclusion as to whether both the signatures were put by the same person. The expert also can rely on the admitted signatures

¶49

O.P.(C) No.2029/ 2016

¶50

¶51

of the defendant which are available in court namely vakalath, written statement and also the power of attorney executed by him in favour of his wife authorizing her to conduct the case on his behalf. So, under such circumstances, there is no necessity for obtaining the specimen signature of the petitioner for the purpose of sending the same for comparison. So the order passed by the court below directing the petitioner to appear for providing specimen signature is unwarranted at this stage. If the expert feels that the present standard signature is also required for comparison, then, court below is at liberty to direct the petitioner to appear before that court for providing his specimen signature as requested by the expert for this purpose. If such thing is required, then, sufficient time may be given to the petitioner to come from his working place to provide the specimen signature sought by the expert for this purpose. Otherwise, the court below can proceed with sending of the document with the available admitted signatures and also give direction to the expert to compare the signatures available in Ext.P2 itself one of which has been admitted by the petitioner for the purpose of coming to the conclusion as to whether both the

¶52

O.P.(C) No.2029/ 2016

¶53

¶54

signatures found in Ext.P2 have been put by the same person or

¶55

there is any forgery in any of the signatures found in Ext.P2.

¶56

With the above direction and observation this petition is disposed of.

¶57

Interim order of stay of further proceedings is vacated. Registry is directed to communicate this judgment to the court below immediately.

¶58

Sd/-

¶59

K.RAMAKRISHNAN , JUDGE

¶60

vdv/22/09/16

Thoppasseri Jaleel v. Deepesh

Case brief

What is this about?

What did the court decide?

Thoppasseri Jaleel v. Deepesh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Abraham Ninan Vs P.v.Kurian

Anil Ravindran Vs Kosamattom Finance

Raseena Vs Savad B

Mathew Vs Cyriac

Sreeja Mahesh Vs Sree Narayana College Staff Co-Operative Society Ltd. No a

Manjula M. Vs Shibu