Allowed

Venugopalan v. Narayanan A.K

Kerala HC21 Feb 2017OP(C)/2339/2014

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the High Court allowed the petitioner's application to send a disputed signature from a promissory note for expert opinion. The court set aside the lower court's order which dismissed the belated application, holding that parties should not be denied the right to expert evidence in signature disputes unless there is gross negligence causing prejudice.

What did the court decide?

Set aside the impugned order and allow the petition for expert opinion. Direct the lower court to send the disputed signature to an expert on 16.3.2017.

Venugopalan Vs Narayanan A.K — Property and Title | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938

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OP(C).No. 2339 of 2014 (O)

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AGAINST THE ORDER DATED 17.9.2014 IN I..NO.4754/2014 IN OS.NO.1135/2007OF THE PRINCIPAL.SUB COURT,THRISSUR

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PETITIONER/PETITIONER/PLAINTIFF:

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VENUGOPALAN S/O.KAKKASSERIKALAM GOVINDAN NAIDU, MANNUTHI DESOM, OLLUKKARA VILLAGE, THRISSUR.

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BY ADV. SRI.DILIP J. AKKARA

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RESPONDENT/RESPONDENT/DEFENDANT:

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NARAYANAN A.K S/O.KRISHNAN ASARI, APPEKKATTIL HOUSE, KATTUKULOAM,, APPEKKATPADY DESOM, KANIYARKODU VILLAGE, THALAPPILLY TALUK, TRISSUR. 680 001.

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BY ADV. SRI.P.B.KRISHNAN BY ADV. SRI.P.M.NEELAKANDAN BY ADV. SRI.P.B.SUBRAMANYAN BY ADV. SRI.SABU GEORGE BY ADV. SRI.S.NITHIN (ANCHAL)

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2339 of 2014 (O)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1	PHOTOCOPY OF PRO NOTE DATED 9.11.04 EXECUTED BY RESPONDENT.
EXT.P2	PHOTOCOPY OF THE PLAINT DATED 31.10.07 IN OS 1135/07 OF SUB COURT THRISSUR.
EXT.P3	PHOTOCOPY OF WRITTEN STATEMENT DATED 6.3.08 IN OS 1135/07.
EXT.P4	PHOTOCOPY OF PROOF AFFIDAVIT DATED 21.8.14 OF DW-1 IN OS.NO.1135/07.
EXT.P5	PHOTOCOPY OF ADDITIONAL WRITTEN STATEMENT DATED 29.8.14 IN OS.NO.1135/07.
EXT.P6	PHOTOCOPY OF OBJECTION DATED 4.9.14 FILED BY PETITIONER TO IA.NO.4851/14 PRAYING TO ACCEPT EXT.P5.
EXT.P7	PHOTOCOPY OF IA.NO.4754/14 DATED 23.8.14 IN OS.NO.1135/07.
EXT.P8	PHOTOCOPY OF ORDER DATED 17.9.14 IN IA.NO.3754/14 IN OS.NO.1135/07 OF PRINCIPAL SUB COURT, THRISSUR.

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RESPONDENT'S EXHIBITS: NIL

//TRUE COPY//

AHZ/

P.Somarajan, J.

O.P.(C)No.2339 of 2014 (O)

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Dated this the 21^st day of February, 2017

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O R D E R

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Aggrieved by the order dated 17.9.2014 in I.A.No.4754 of 2014 in O.S.No.1135 of 2007 of the Principal Sub Court, Thrissur, the plaintiff/petitioner came up with this original petition under Article 227 of the Constitution of India. The said application was filed for sending the disputed handwriting in a promissory note, which is the subject matter of the suit, for an expert opinion. The suit was filed for recovery of money based on the promissory note. The defendant, in his written statement, disputed and denied its execution. The case was thereafter listed and trial was also commenced. The plaintiff and his witnesses were examined and thereafter the defendant was examined as DW1. It is thereafter, the defendant filed an additional written statement with an application to accept the same. Though the said written statement was filed at a highly belated stage, the lower court opted to accept the same by allowing the application. Thereon the plaintiff filed Ext.P7 petition for sending the disputed

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O.P.(C).No.2339 of 2014 (O)

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signature found in the promissory note for an expert opinion. However, by the impugned order, that application was dismissed by the lower court stating that it is a highly belated one, which is under challenge in this original petition.

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Heard Sri.Dilip J. Akkara, learned counsel appearing for the petitioner and Sri.P.B. Krishnan, learned counsel appearing for the respondent.

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Ext.P7 application was filed before the lower court for sending the disputed signature found affixed in the promissory note involved in the suit. The defendant disputed and denied its execution as well as the signature found affixed therein. During the course of cross examination of the defendant as DW1, he had expressed his willingness to send the disputed signature for comparison by an expert. It is thereafter, an additional written statement was filed. Though it was filed after the culmination of the oral and documentary evidence on the part of the plaintiff and after the examination of the defendant as DW1 it was accepted by the lower court. It is not clear or discernible why the lower court has not

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O.P.(C).No.2339 of 2014 (O)

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extended such a treatment to the plaintiff herein who came up with Ext.P7 petition, though he had opted to allow and accept the written statement which was filed after the examination of both the plaintiff and the defendant. In the matter of execution of a promissory note no party shall be curtailed in adducing their respective evidence, especially by way of expert evidence in the matter of disputed signature found affixed in the promissory note. It is permissible even after the examination of the plaintiff as well as the defendant and it will not cause any kind of prejudice either to the plaintiff or to the defendant. On the other hand, permitting an additional written statement after the examination of the plaintiff and his witnesses and that too after the examination of the defendant may cause prejudice to the parties if there is inconsistent or divergent pleadings in the additional written statement which was not raised at the first instance. All these settled legal principles were overlooked by the lower court. In any view of the matter, for having an expert opinion in the matter of disputed signature, the Court should always take a liberal view unless there is gross negligence in preferring the application in time. Even in the case of such gross negligence, the Court has to penalize the party concerned for the default or laches in

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O.P.(C).No.2339 of 2014 (O)

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terms of money and not by denying their right to adduce evidence. Hence the order passed by the lower court is liable to be interfered as there is no proper exercise of the jurisdiction vested with the trial court while passing the impugned order and I do so.

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The order of the lower court is set aside. The prayer in Ext.P7 (I.A.No.4754 of 2014) is hereby allowed. The parties shall appear before the lower court on 16.3.2017. On that day, the lower court shall send the records, both admitted and the disputed signature, to an expert and shall dispose of the matter at the earliest.

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The original petition is allowed accordingly. No order as to costs.

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P. Somarajan Judge

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ahz/

Venugopalan v. Narayanan A.K

Case brief

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Venugopalan v. Narayanan A.K

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