Allowed

M.P.Suhara v. C.Suhara

Kerala HC4 Jan 2024OP(C)/2174/2023

Case brief

AI extract

What is this about?

The High Court allowed a petition seeking admission of an application for expert opinion under Section 45 of the Evidence Act. The earlier order refusing the belated application was set aside. The petition was disposed of by directing the lower court to appoint a private expert, with the petitioner bearing the costs, and staying the trial until the report is received.

What did the court decide?

The Ext.P6 order excluding the application is set aside; parties may nominate private experts; trial stayed pending report; petitioner to bear expenses.

M.P.Suhara Vs C.Suhara — Contract and Commercial Disputes | Kerala HC (2024)

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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 C. JAYACHANDRAN

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THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945

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OP(C) NO. 2174 OF 2023

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ORDER DATED 26.09.2023 IN IA 4/2023 IN OS 98/2019 OF MUNSIFF COURT,

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PAYYANNUR

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PETITIONER/PETITIONER/PLAINTIFF:

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M.P.SUHARA

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AGED 64 YEARS, WIFE OF ABDUL FATHAH,
MUNDAYATTU PURAYIL HOUSE, CHERUTHAZHAM AMSOM DESOM,
P.O.MANDUR, PAYYANNUR TALUK, KANNUR DISTRICT, PIN - 670501

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BY ADVS.

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C.MURALIKRISHNAN (PAYYANUR)
ABRAHAM GEORGE JACOB
P.I.RAHEENA
SHAHNA

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RESPONDENT/RESPONDENT/DEFENDANT:

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C.SUHARA

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AGED 52 YEARS, WIFE OF MUSTHAFA.M, CHENGA HOUSE,
KOROM AMSOM DESOM, THOTTAM KADAVU, PO.KANAYI, PAYYANNUR
TALUK,KANNUR DISTRICT, PIN - 670307

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BY ADVS.
K B ARUNKUMAR
POOJA K.S.(K/000244/2021)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C.) No.2174 of 2023

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C.JAYACHANDRAN, J.

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O.P.(C.) No.2174 of 2023

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Dated this the 04^th day of January, 2024

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JUDGMENT

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The plaintiff in O.S. No.98/2019 of the Munsiff Court, Payyannur is the petitioner herein. He is aggrieved by Ext.P6 order, which refused an application to send the disputed agreement for opinion of an expert under Section 45 of the Evidence Act. The application was dismissed essentially for the reason that the same was preferred after commencement of the trial and when the matter was posted for further evidence, pursuant to examination of the plaintiff and one of the attesting witness (PW2).

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Heard the learned counsel for the petitioner and the learned counsel for the respondent.

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Learned counsel for the respondent seriously opposed the relief sought for in this Original Petition on

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O.P.(C.) No.2174 of 2023

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the premise that the petitioner is trying to fish evidence, after his attempt to prove the agreement through PW2 miserably failed. PW2, an attesting witness to Ext.P1 agreement (based upon which the suit for money rests) categorically deposed that the defendant has subscribed his hands to a blank stamp paper. He also stated that he has not seen the defendant signing Ext.P1 agreement. It was emphatically pointed out by the learned counsel for the respondent that the signature contained in Ext.P1 was denied as early at the time of filing the written statement, pursuant to which, the plaintiff failed to take any steps under Section 45 of the Evidence Act. In this very belated stage, permitting such a course may not be in the interest of justice, is the submission made by the learned counsel for the respondent.

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Having heard the learned counsel appearing for the parties, this Court is of the opinion that the plaintiff can be afforded an opportunity to prove his

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O.P.(C.) No.2174 of 2023

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document by taking a course to the remedy under Section 45 of the Evidence Act. This Court is of the opinion that the plaintiff cannot be found fault with for having chosen to prove Ext.P1 agreement through the attesting witness. It goes with saying that ocular evidence tendered by an attesting witness as regards the execution of the document, if reliable, stands at a far better footing when compared to the evidence sought to be adduced by taking course to Section 45 of the Evidence Act. But proof of execution through an attesting witness cannot be deemed or treated as the only remedy available to the plaintiff, which course, if adopted, will give primacy to the opinion of the attesting witness. The law cannot be that, once the attesting witness gives a version, all and sundry are bound by it. It is only upon exhausting a better remedy, that the plaintiff was compelled and constrained to avail a lesser remedy by way of Section 45. In the peculiar facts and circumstances, the delay cannot stand in the

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O.P.(C.) No.2174 of 2023

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way of availing the remedy under Section 45 of the Evidence Act. In the circumstances, Ext.P6 order cannot be sustained; the same is set aside.

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To save the time for disposal of the suit, in

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which part of evidence had been let in, this Court is of the opinion that the disputed document need not be send to the Forensic Science Laboratory, Thiruvananthapuram, which may entail considerable delay. Instead, it will be open for the parties to chose a private expert, for which purpose, the petitioner will submit a list of three private experts before the court below. It will be open for the respondent as well to file a list of private experts, in case the respondent would choose to do so. The court below will appoint an appropriate expert for the purpose of comparison of the disputed document under Section 45 of the Evidence Act. Once the report of the expert is made available, the trial will be proceeded from the state where it is stopped. Ext.P4 application is allowed as indicated

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O.P.(C.) No.2174 of 2023

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above. Needless to say that the trial will stand stayed until the expert’s report/opinion is made available. It is

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clarified that the expenses for the expert will necessarily be borne by the petitioner/plaintiff.

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The original petition is disposed of as above.

Sd/-

C. JAYACHANDRAN

JUDGE

SKP/04-01

O.P.(C.) No.2174 of 2023

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APPENDIX OF OP(C) 2174/2023

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`PETITIO`	`NER’S EXHI`	`BITS:`
`EXHIBIT`	`P1`	`TRUE COPY OF THE AGREEMENT DATED 27/09/2017` `EXECUTED BY RESPONDENT IN FAVOUR OF PETITIONER`
`EXHIBIT`	`P2`	`TRUE COPY OF THE PLAINT DATED 09/05/2019 FILED` `BY THE PETITIONER IN OS NO.98/2019 ON THE FILES` `THE COURT OF MUNSIFF PAYYANUR`
`EXHIBIT`	`P3`	`TRUE COPY OF THE WRITTEN STATEMENT DATED` `18/09/2019 FILED BY THE RESPONDENT IN OS` `NO.98/2019 ON THE FILES THE COURT OF MUNSIFF` `PAYYANUR`
`EXHIBIT`	`P4`	`TRUE COPY OF THE AFFIDAVIT AND PETITION DATED` `08/08/2023 IN IA.NO. 04/2023 IN OS.NO.98/2019` `FILED BY PETITIONER ON THE FILES THE COURT OF` `MUNSIFF PAYYANUR`
`EXHIBIT`	`P5`	`TRUE COPY OF THE COUNTER DATED 11/08/2013 FILED` `BY RESPONDENT IN IA. NO 04/2023`
`EXHIBIT`	`P6`	`TRUE COPY OF THE ORDER DATED.26/09/2023 OF` `MUNSIFF COURT, PAYYANUR IN IA.NO.04/2023 IN` `OA.NO.98/2019`

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RESPONDENT’S EXHIBITS:NIL

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TRUE COPY

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P.A. TO JUDGE

M.P.Suhara v. C.Suhara

Case brief

What is this about?

What did the court decide?

M.P.Suhara v. C.Suhara

Case brief

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