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 NOs.35895-35896/2017 & WRIT PETITION NO.36049/2017(GM-CPC) BETWEEN:
BEENA ANTHONY W/O. ANTHONY CHACKO AGED ABOUT 47 YEARS R/AT 429, 5TH MAIN 2ND BLOCK, HRBR LAYOUT BANGALORE 560043 ... PETITIONER (BY SRI: ANANDARAMA K, ADV) AND:
KRISHNAPPA S/O. LATE. JAKKUR NARAYANAPPA R/AT BAGALURU VILLAGE JALA HOBLI BANGALORE NORTH TALUK BANGALROE 560064.
(SINCE DECEASED REP BY RESPONDENTS HEREIN) 1. DEVEERAMMA W/O. LATE. KRISHNAPPA AGED MAJOR R/AT BAGALURU VILLAGE JALA HOBLI BANGALORE NORTH TALUK BANGALROE 560064.
2. AMBUJA D/O. LATE. KRISHNAPPA W/O. CHANDRASHEKAR, AGED MAJOR R/AT NO. 305, BAGAGUNTA NAGASANDRA POST BANGALORE 560073 3. SHOBHA D/O. LATE. KRISHNAPPA W/O. RANGANATHA AGED MAJOR R/AT NO.GULUR VILLAGE AND POST KASABA HOBLI, TUMKUR TALUK TUMKUR 572102 4. PADMA D/O. LATE. KRISHNAPPA W/O. SHANTHA KUMAR AGED MAJOR R/AT SEEKAYANAHALLI VISHWANATHAPURA POST KUNDANA HOBLI DEVANAHALLI TALUK 562110. BANGALORE RURAL DIST 5. ASHA D/O. LATE. KRISHNAPPA AGED MAJOR BAGALURE VILLAGE JALAHOBLI BANGALORE NORTH TALUK BANGALORE 560064 6. MURTHY S/O. LATE. KRISHNAPPA AGED MAJOR BAGALURE VILLAGE JALAHOBLI BANGALORE NORTH TALUK BANGALORE 560064 7, MANJUNATH S/O. LATE. KRISHNAPPA AGED MAJOR BAGALURE VILLAGE JALAHOBLI BANGALORE NORTH TALUK BANGALORE 560064 ... RESPONDENTS (BY SRI:VIJAYA SHEKARA GOWDA V, ADV FOR C/R6 & 7 R1 TO 5 – NOTICE HELD SUFFICIENT V/O/DTD.21.8.17) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS PERTAINING TO THE IMPUGNED ORDER, QUASH THE ORDER DATED 22.7.2017 PASSED BY THE HON'BLE SENIOR CIVIL JUDGE AND JMFC [SR.DIV] DEVANAHALLI IN O.S.NO.1231/2006 VIDE ANNEXURE-A AND CONSEQUENTLY ALLOW THE INTERLOCUTORY APPLICATION [IA NO.19 & 20] FILED UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE 1908 VIDE ANNEXURE-P & Q; QUASH THE REPORT DATED 11.5.2015 SUBMITTED BY THE TRUTH LABS [ANNEXURE-K] AND ETC., THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING B GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:
O R D E R These writ petitions are listed for preliminary hearing ‘B’ group. With the consent of learned Counsel for both sides, it is heard finally.
2. The petitioner is plaintiff in O.S. No.1231/2006, which is pending on the file of Civil Judge (Sr.Dn.) Devanahalli. The said suit has been filed by her seeking the relief of specific performance of agreement of sale dated 01.07.2004. Since the defendants disputed an endorsement made on the agreement and also the signatures pertaining to the said endorsement, petitioner intended to seek examination of the disputed signatures by a handwriting expert. Hence, an application was filed under Order XXVI Rule 10(A) of the Code of Civil Procedure, 1908 (for short ‘CPC’) seeking reference of the disputed document Ex.P1, with the admitted signatures of defendant Nos.1 to 3 found on written statement, vakalaths, affidavit of DW1 to the Director, Forensic Science Laboratory, Handwriting Expert, Madivala, Bengaluru-560 068. On 04.10.2010, the Trial Court allowed the said application on 04.10.2010 and the matter was referred to the Director, Forensic Science Laboratory, Handwriting Expert, Madivala, Bengaluru-560 068. According to the petitioner, thereafter a Memo was filed on 20.10.2012 signed by the Counsel for the petitioner/plaintiff only, stating that the matter may be referred to the Director, Truth Labs, Koramangala, Bengaluru – 560 029. The Trial Court by order dated 25.06.2013 referred the matter to the Director, Truth Labs and ordered for refund of the amount deposited by the petitioner towards the Commissioner’s fee pursuant to order dated 04.10.2010. Subsequently, M/s Truth Labs has submitted its report on 11.05.2015. The petitioner who is plaintiff in the suit filed objection to the said report on 05.10.2015. The contesting defendant namely defendant No.2 also filed statement of objections to the said report on the same day. Thereafter, the petitioner filed two applications on 05.07.2017: one, under Section 151 of CPC seeking re-opening of the suit and the second, for issuance of second Commissioner warrant to the Government, Forensic Science Laboratory, Handwriting Expert, Madivala, Bengaluru-560 068 as per the order dated 04.10.2010 passed on IA.10. By the impugned order dated 22.07.2017, the said applications have been rejected. Being aggrieved, the plaintiff in the suit has preferred these writ petitions.
3. I have heard the learned Counsel for petitioner and the learned Counsel for respondent Nos.6 and 7 who are contesting respondents at length and perused the material on record.
4. The grievance of the petitioner is with regard to her advocate filing a Memo on 20.10.2012 seeking reference of Ex.P1 and other documents containing admitted signatures of defendant Nos.1 to 3 to the Director, Truth Labs by keeping her ignorant and without giving any information to her about the filing of such a Memo. It is contended by petitioner’s counsel that if only her advocate before the Trial Court had brought it to her notice that he is filing such a Memo, then she would have instructed him not to do so as the Trial Court had already passed an order on 04.10.2010 referring the matter to the Director, Forensic Science Laboratory, Handwriting Expert, Madivala, Bengaluru-560 068. Petitioner’s counsel contended that in the absence of plaintiff being aware of the fact that her Advocate was filing such a Memo and the order being passed thereon by the Trial Court referring the matter to M/s Truth Labs and the report being submitted has caused grave prejudice to her, as she had not instructed her counsel to seek modification of the order dated 04.10.2010 nor seek reference to any other handwriting expert. Learned counsel contended that the Trial Court ought not to have referred the matter to M/s Truth Labs by modifying order dated 04.10.2010 and that the Trial Court ought to have allowed the applications filed by the petitioner seeking reference on Ex.P1 and the documents containing admitted signatures of defendant Nos.1 to 3 to the Director, Forensic Science Laboratory, Handwriting Expert, Madivala, Bengaluru-560 068.
5. Per contra, the learned Counsel for respondent Nos.6 and 7 contended that when the petitioner filed objection to the report submitted by M/s Truth Labs way back in the year 2015, she was aware of the fact that the report had been submitted by M/s Truth Labs and therefore, filed objection to the said report. It is only by way of an after thought in July 2017 that plaintiff filed an application seeking reference to the Forensic Science Laboratory, Handwriting expert, Madivala, Bengaluru as per order dated 04.10.2010 and that the Trial Court was justified in dismissing the said applications which were filed at the stage of arguments of the suit. Further, petitioner could have cross examined the Court Commissioner who submitted the report and that, there is no merit in the writ petitions.
6. The detailed narration of facts and contentions would not call for a reiteration but only highlighted the fact that the Trial Court on 04.10.2010 had appointed the Director, Forensic Science Laboratory, Handwriting Expert, Madivala, Bengaluru-560 068 as a Court Commissioner to compare the disputed signatures of defendant Nos.1 to 3 on Ex.P1 with their admitted signatures on certain other documents such as written statement, vakalath and evidence of DW1. When the aforesaid order was passed on 04.10.2010, there was no necessity on the part of the plaintiff to seek reference to any other handwriting expert on 20.10.2012 as the plaintiff had acted on the said order and deposited the amount towards the Commissioner’s fee and other expenses. When the Memo was filed on behalf of the plaintiff on 20.10.2012, the Trial Court ought to have considered as to whether the plaintiff was seeking modification of the order dated 04.10.2010.
7. In fact, Memo dated 20.10.2012, a copy of which is produced as Annexure-H, is signed only by the Advocate for the plaintiff. The said Memo is not in the form of an application, seeking modification of order dated 04.10.2010 neither the plaintiff has signed on the said Memo nor is it supported by any affidavit of the plaintiff. When such being the case, the Trial Court ought to have been more vigilant and circumspect in passing an order on the said Memo and thereby, modifying its earlier order dated 04.10.2010 without any reason forthcoming and referring the matter to Director, M/s Truth Labs for examining the disputed signatures.
8. Further, the fact that the plaintiff was unaware of filing of the Memo by her counsel is corroborated by her taking steps against her advocate by filing a complaint before the Bar Council of Karnataka under Section 35 of the Advocates Act, 1961. No litigant would take serious action against his/her Advocate by filing a complaint before the Bar Council unless there has been serious dereliction of duty by the Advocate and detriment to his/her interest in the case. The fact that she has taken steps against her Advocate and has also changed her Advocate would only imply that she was unaware of the fact of filing of the Memo by her Advocate on 20.10.2012. If only the Memo had the signature of the petitioner herein or it was in the form of an application supported by the affidavit of the plaintiff seeking modification of order dated 04.10.2010 by getting the matter referred to a different handwriting expert, then the developments which have taken place subsequently in the suit would not have occurred. Thereafter, the petitioner filed an application seeking re-opening of the case and for referring the matter to the Director, Forensic Science Laboratory, Handwriting Expert, Madivala, Bengaluru-560 068 in terms of order dated 04.10.2010. That application is not really for appointment of a second Commissioner, but it is an application seeking enforcement of order dated 04.10.2010 as the said order has not been enforced by the Advocate for the petitioner but instead the Memo was filed seeking reference to another handwriting expert.
9. Therefore, what emerges is that the Trial Court was not vigilant enough in noticing the fact that the Memo was neither signed by the plaintiff nor was it accompanied by a supporting affidavit of the plaintiff. If the plaintiff-petitioner herein intended to seek modification of order dated 04.10.2010, it could have been done only at the instance of plaintiff and not by filing a Memo signed only by her Advocate. In the circumstances, the Trial Court ought to have allowed the applications filed by the plaintiff as the burden is cast on the plaintiff to prove not only Ex.P1, but also the disputed endorsement on Ex.P1 so as to seek relief of specific performance of agreement of sale dated 01.07.2004.
10. In the result, the orders dated 25.06.2013 passed on Memo dated 20.10.2012 and the subsequent proceedings pursuant to that order also stand quashed, including the report submitted by M/s Truth Labs. The matter is now referred to the Director, Forensic Science Laboratory, Handwriting Expert, Madivala, Bengaluru-560 068, who is hereby appointed as the Court Commissioner to compare the disputed signatures of defendant Nos.1 to 3 on Ex.P1 with the admitted signatures and to submit a report to the Trial Court in terms of the order dated 04.10.2010 passed by the Trial Court. The Trial Court is directed to submit the relevant records to the Handwriting expert, forthwith. The handwriting expert is requested to expedite the matter as the initial order was passed on 04.10.2010 and the same has not been implemented till date.
In the result, the writ petitions are allowed in the aforesaid terms.
No costs.
Any observation made during the course of this order regarding the Advocate for the plaintiff-petitioner herein filing the Memo is only for the purpose of this case and the same would not have a bearing in any proceeding commenced by the petitioner against the erstwhile Advocate of the petitioner.
Sd/- JUDGE *bgn/-