IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2017 BEFORE THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA WRIT PETITION No.52862/2014 & W.P.No.53335/2014 (GM-CPC) BETWEEN:
B. SIDDARAJU S/O. LATE BASAVAIAH, AGED ABOUT 55 YEARS, RESIDING AT NALLUR VILLAGE, CHANDAKAVADI HOBLI HONDARABALU POST, CHAMARAJANAGAR TALUK. ... PETITIONER (BY SRI: H. MOHAN KUMAR, ADVOCATE) AND:
1. CHIKKAMADAIAH S/O. LATE KADA BASAVAIAH, AGED ABOUT 58 YEARS, R/AT NALLUR VILLAGE, CHANDAKAVADI HOBLI, CHAMARAJANAGAR TALUK.
2. G. SHARP S/O. LATE R. VEERAPPA, AGED ABOUT 80 YEARS, R/AT MASKAPURA, KASABA HOBLI, CHAMARAJANAGAR TALUK. ... RESPONDENTS (BY SRI: SPOORTHY HEGDE NAGARAJ, ADVOCATE FOR R-1; V/O DT. 27/10/2016 PETITION ABATES AS AGAINST R-2) ***** THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 26.09.2014 IN I.A.NO.25/2014 AND I.A.NO.26/2014 IN O.S.NO.201/2003 ON THE FILE OF THE ADDL. CIVIL JUDGE & JMFC, CHAMARAJANAGAR VIDE ANN-F AND ETC., THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, COURT MADE THE FOLLOWING:
O R D E R These writ petitions are listed for preliminary hearing – ‘B’ group. With the consent of learned counsel on both sides, it is heard finally.
2. Petitioner is the plaintiff in O.S.No.201/2003, which is pending on the file of the Civil Judge (Jr.Dn.) & JMFC at Chamarajanagar. That suit has been filed seeking the relief of declaration that plaintiff is the legatee under the Will dated 20/05/1997, said to have been executed by one R.Veerappa, in respect of the suit schedule property. When the matter was at the stage of arguments, petitioner herein filed an application under Order XXVI Rule 10(A) of the Code of Civil Procedure, 1908 (CPC) seeking a reference of the signature on Ex.P8, which is stated to be the Will and last testament of deceased R.Veerappa to the handwriting expert for comparing the same with that of other admitted signatures. The said application was filed on 24/03/2014. By the impugned order dated 26/09/2014, the said application has been dismissed. Being aggrieved, these writ petitions have been preferred.
3. During the pendency of the writ petitions, respondent No.2 herein, who is defendant No.2 has died and due to steps not being taken in time, writ petitions have abated as against respondent No.2. Be that as it may, I have heard learned counsel for petitioner and learned counsel for respondent No.1 as well as perused the material on record.
4. Petitioner’s counsel contended that the burden is cast on the petitioner to prove the last Will and testament of deceased R. Veerappa and therefore, the application was filed seeking reference of the disputed signature on Ex.P-8 for the purpose of comparing the same with the admitted signatures of the said attestor and that the trial Court ought not to have dismissed the said application. As a result, petitioner would not be able to prove that Ex.P-8 was indeed the Will of deceased R.Veerappa.
5. Per contra, learned counsel for respondent No.1 drew my attention to the fact that the petitioner has been dragging on the proceedings and it is for the third time, the matter has come to the stage of arguments. On two earlier occasions, at the instance of the petitioner herein, the matter was relegated to earlier stages for the purpose of reopening the case and recording further evidence. Now when the matter is at the stage of arguments, another frivolous application has been filed seeking to protract the proceedings and that there is no merit in the writ petitions.
6. Having heard learned counsel for the respective parties and on perusal of the material on record, it is noted that the suit is of the year 2003. That on two earlier occasions, the matter was at the stage of arguments and at the instance of petitioner herein, the matter was relegated to earlier stages. When the Will has been contested by respondent No.1 by disputing the signature on Ex.P-8, duty was cast on the petitioner to seek reference of the said signature to a handwriting expert and obtain his or her opinion at the earliest point of time. But the petitioner has slept over the matter for over a decade and not taken advantage of the fact that, on two occasions, when the matter was at the stage of arguments and thereafter was relegated to the earlier stages, by not filing such an application. Therefore, I find that the trial Court was justified in dismissing the application on the ground of delay and only to protract the proceedings. Therefore, there is no merit in the writ petitions.
7. However, the trial Court is directed to compare the signature on Ex.P-8 with the admitted signatures on Exs.P-12, 13 and D-33 suo moto and come to a conclusion as to whether the signature on Ex.P-8 is indeed that of the attestor or not. Subject to the aforesaid direction, writ petitions are dismissed.
In view of dismissal of the writ petitions, interim stay granted on 20/11/2014 stands vacated.
Sd/- JUDGE S*