IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION No.16781/2017(GM-CPC) BETWEEN :
Shri B.M.Babu S/o Munikrishnappa Aged about 32 years Residing at Bommanahalli Village Nandi Hobli, Chikkaballapura Taluk and District-562 101.
(By Sri Arun, Advocate for Sri Sunil Dutt Yadav S., Advocate) AND :
Smt.Kempamma W/o late Venkatarayappa Aged about 48 years Residing at Bommanahalli Village Nandi Hobli, Chikkaballapura Taluk and District-562 101.
…Petitioner …Respondent This writ petition is filed under Articles 226 and 227 of the Constitution of India praying set aside the order of the learned Civil Judge and JMFC, Chickballapur dated 21.3.2017 in disposing of the Application dated 3.1.2017 in O.S. No.473/2009 dismissing the Application filed by the petitioner/plaintiff under order XXVI Rule 10(A) of Code of Civil Procedure read with Section 73 of the Evidence Act and to allow the interim Application filed by the petitioner vide Annexure-A; and etc.
This writ petition coming on for preliminary hearing, this day the Court made the following:-
O R D E R Heard Sri Arun, learned counsel appearing on behalf of the petitioner and perused the records.
2. Petitioner has filed the suit in O.S.No.473/2009 for specific enforcement of agreement of sale dated 6.10.2007. Said document came to be marked as Ex.P1. On account of defendant having disputed the LTM found on the said document by contending that it is not the LTM, an application in I.A.No.IV came to be filed by plaintiff under Order XXVI Rule 10A of CPC for referring the said document to finger print expert to compare the LTM found on Ex.P1 with the admitted LTM of defendant. Said application came to be allowed by trial Court on 17.3.2011 and defendant was directed to give her LTM to the Court for being compared with the disputed LTM found on the disputed document at Ex.P1. Accordingly, the document along with the admitted LTM of the defendant has been sent to the finger print expert and report has been received. The matter is at the stage of final arguments. At that stage, the plaintiff has filed the present application questioning the order passed under Order XXVI Rule 10A of CPC for yet again forwarding the disputed document at Ex.P1 and other documents (not specified as to which other documents) for being forwarded to Forensic Science Laboratory and to send the report with regard to admitted signature of the defendant and the signature found on other documents. Even according to the plaintiff, the agreement of sale at Ex.P1 dated 6.10.2007 contains the LTM of the defendant. This was seriously disputed by the defendant in her written statement and she has reiterated said contention in her evidence. As such, trial Court on the prayer made by the defendant had sent the said document for comparing the LTM found on the disputed document at Ex.P1 with the admitted LTM of the defendant obtained in the Court.
3. Though, plaintiff would now contend that defendant is also in the habit of affixing the signature, it is not even the case of the plaintiff that defendant had affixed her signature to the disputed document at Ex.P1. When the report of the Commissioner relating to the LTM found on Ex.P1 and admitted LTM of the defendant is available on record, question of sending the disputed document at Ex.P1 for obtaining yet another report from the Commissioner would be of no avail.
Hence, the order of rejection of the application filed by plaintiff passed by the trial Court would not call for interference. No grounds are made out to entertain this petition. Hence, writ petition is hereby rejected.
SD/- JUDGE *ck/-