IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.190/2017(GM-CPC) BETWEEN:
SMT. G. SHARADAMMA, W/O LATE N. ASHWATHAPPA, AGED ABOUT 52 YEARS, RESIDENT OF THONDALA VILLAGE, HOLUR HOBLI, TALUK AND DISTRICT:KOLAR-563101.
(BY SRI VEERANNA G. TIGADI, ADVOCATE) AND:
... PETITIONER MR. AJAZ AHMMED KHAN, S/O LATE ABDUL AJIZ KHAN, AGED ABOUT 56 YEARS, RESIDENT OF HYDERALI MOULA, SRINIVASAPUR, DISTRICT: KOLAR-563101.
... RESPONDENT (BY SRI Y.R. SADASHIVAREDDY, Sr. COUNSEL FOR SRI DEEPAK.J., ADVOCATE) …… THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-D THE IMPUGNED ORDER DATED 22.11.2016 IN O.S.NO.290/2014 ON UNNUMBERED IA, PASSED BY THE LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND CJM, KOLAR.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant has filed the present writ petition against the order dated 22.11.2016 made in O.S.No. 290/2014 rejecting the application filed by him under Order XXVI Rule 10A r/w Section 151 of Code of Civil Procedure on the file of the Prl. Senior Civil Judge and CJM, Kolar.
2. The respondent/plaintiff filed suit in O.S.No.
290/2014 for specific performance to enforce the agreement of sale dated 19.07.2014, contending that the defendant being the owner of the suit schedule property morefully described in the schedule, has entered into an agreement of sale with the plaintiff on 19.07.2014 to sell the suit schedule property for a valuable consideration of Rs.8 lakhs and received Rs.7 lakhs on the date of the agreement from the plaintiff in the presence of witnesses and agreed to receive the balance amount of Rs.1 lakh at the time of registration of the sale deed and inspite of repeated requests and legal notice dated 28.07.2014, the defendant failed to execute the sale deed. Therefore, filed suit for specific performance.
3. The defendant filed written statement, denied the plaint averments and contended that she never executed the alleged agreement of sale in favour of the plaintiff and therefore sought for dismissal of the suit.
4. When the matter was posted for arguments, at that stage, defendant filed an application under Order XXVI Rule 10A r/w Section 151 of Code of Civil Procedure to appoint hand writing expert as a Commissioner for comparison of signatures found in the agreement Ex.P.1(a) to (c) dated 19.07.2014 and signatures of defendant/G.Sharadamma, found in the registered sale deed executed by Anthonyswamy, in favour of the defendant G.Sharadamma, marked as Ex.D.9 and to submit his report, contending that the defendant denied the execution of agreement produced by the plaintiff as per Ex.P.1 and the signatures found in Ex.P.1 are not her signatures. As such, to compare the signatures found in the Ex.P.1 and in the registered sale deed executed by her vendor Anthonyswamy in respect of the suit schedule property Ex.D.9, the Commissioner report is very much essential. The said application was resisted by the plaintiff by filing objections.
5. The Trial Court, considering the application and the objections, by the impugned order dated 22.11.2016 dismissed the application. Hence the present writ petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Veeranna G. Tigadi, learned counsel for the petitioner/defendant vehemently contended that the impugned order passed by the Trial Court rejecting the application filed by the defendant under Order XXVI Rule 10A r/w Section 151 of Code of Civil Procedure is without assigning any reasons and contrary to the material on record and therefore, is liable to be quashed on that ground alone. Learned counsel further contended that the defendant has denied her signature on Ex.P.1 and also execution of agreement of sale. Therefore, it was the duty of the Trial Court to appoint a Commissioner as contemplated under Order XXVI Rule 10A r/w Section 151 of Code of Civil Procedure to find out the truth as to whether the defendant executed the alleged agreement or not. Therefore, he sought to quash the impugned order by allowing the writ petition.
8. Per contra, Sri Y.R.Sadashiva Reddy, learned senior counsel for the respondent/plaintiff sought to justify the impugned order and contended that the defendant has admitted in the cross-examination that the name mentioned as Sharadamma and signature found in Ex.P.1 is her signature and therefore, the Trial Court is justified in rejecting the application. Hence, sought to dismiss the writ petition.
9. Having heard the learned counsel for the parties to the lis, it is undisputed fact that the respondent herein filed suit for specific performance to enforce the agreement of sale dated 19.07.2014 contending that the defendant executed the said agreement to sell the suit schedule property for a valuable consideration of Rs.8 lakhs and received Rs.7 lakhs and agreed to receive the balance Rs.1 lakh at the time of registration of sale deed. Same is denied by the defendant contending that she has never executed any agreement in favour of the plaintiff and she has not affixed her signature on the document etc., 10. The Trial Court, while rejecting the application, except stating that the application is filed in total disregard to the detailed order dated 16.11.2016 and also in disobedience to the directions of the Court, and the application is in belated stage and meritless. The Trial Court not recorded as to how the application is not maintainable and has not decided the application on merits. The other three applications filed by the defendant to condone the delay, to reopen the defendant side of evidence and to recall DW-1 for further examination-in-chief have nothing to do with the present application filed under Order XXVI Rule 10A r/w Section 151 of Code of Civil Procedure. Therefore, the impugned order is liable to be quashed.
11. For the reasons stated above, writ petition is allowed. The impugned order dated 22.11.2016 rejecting the application filed under Order XXVI Rule 10A r/w Section 151 of Code of Civil Procedure is hereby quashed. The matter is remanded to the Trial Court to consider the application filed by the defendant under Order XXVI Rule 10A r/w Section 151 of Code of Civil Procedure afresh, after considering the objections and pass a reasoned order, in accordance with law, within a period of one month from the date of receipt of copy of this Order.
Ordered accordingly.
Sd/- JUDGE kcm