IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION NO.12731/2019 (GM CPC) BETWEEN:
SMT. LATE GOURAMMA REP BY HER LEGAL HEIRS SMT. MAHADEVAMMA, W/O H.N.SHIVANNA, AGED ABOUT 73 YEARS, R/A NO.11, BLOCK NO.3, BEML LAYOUT, II STAGE, SRIRAMPURA, MYSORE 570 001.
(BY SRI NAGENDRA NAIK R, ADV.) AND:
SRI G.R. CHANDRAPPA, S/O LATE J. RANGAPPA, AGED ABOUT 71 YEARS, R/A ANJANADHRI NILAYA NMC 5TH CROSS, NEAR GANESH TEMPLE HOSMANE, BHADRAVATHI, SHIMOGA DIST. 577 227.
... PETITIONER ... RESPONDENT THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS AND SET ASIDE THE ORDER DATED 13.2.2019 PASSED ON IA NO.13 IN O.S. NO.48/2014 ON THE FILE OF CIVIL JUDGE & III ADDL. JMFC AT BHADRAV ATHI, SHIVAMOGGA DIST.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The defendant filed the present writ petition against the order dated 13.02.2019 passed in O.S.No.48/2014 rejecting the application (IA No.13) filed by the defendant under Order XXVI Rule 10(A) read with Section 151 of CPC.
2. The respondent-plaintiff filed a suit for recovery of a sum of Rs.2,72,500/- with interest at 18% p.a. contending that the petitioner-defendant has borrowed a sum of Rs.2,00,000/- from the plaintiff on 08.11.2011 for domestic purpose and for financial difficulties by executing promissory note and consideration receipt in favour of the plaintiff. In spite of repeated demands, defendant has not repaid the amount. Hence he has filed the suit. The petitioner-legal representative of the original defendant filed written statement and denied the plaint averments by contending that after the death of original defendant Smt.Gowramma, the petitioner- legal representative of the original defendant has obtained succession certificate from Hon’ble Senior Civil Judge at Bhadravathi to inherit the properties belonging to Gowramma which were purchased during her life time. The petitioner-defendant was in close contact with Gowramma and knows all the transaction of Gowramma. The original defendant has not borrowed any such amount from the plaintiff and sought for dismissal of the suit.
3. After completion of evidence, when the matter was posted for arguments, the legal representative of the original defendant filed application under Order 26 Rule 10A read with Section 151 of CPC to appoint a hand-writing expert as Court Commissioner by referring the admitted signatures in Ex.D2, 4(a) and (b) of the original defendant against the disputed signatures on Exhs.P1(a) and 2(a) and direct the Court Commissioner to submit his report. The legal representative of original defendant has led evidence and produced the documents viz., the original sale deed and the bank documents which bears the signature of Gowramma. The said application came to be resisted by the plaintiff on the ground that earlier similar application for appointment of hand writing expert filed by the legal representative of defendant came to be rejected. Therefore, filing of application for the same relief is impermissible and sought for dismissal of the application. The trial Court considering the objections by the impugned order dated 13.02.2019 rejected the application filed by the defendant. Hence, the present writ petition is filed.
4. I have heard learned counsel for the petitioner and perused the records.
5. Sri Nagendra Naik R., learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting the application filed by the defendant for appointment of Court Commissioner under Order 26 Rule 10A readwith Section 151 of CPC is erroneous and contrary to the material on record. He further contended that the trial Court erred in rejecting the application by comparing the age of the documents. The application is filed only to demonstrate that the signatures on Ex.D2, D4(a) & (b) and the signatures on the promissory note and the consideration receipt are not one and the same. The trial Court has not considered the same. He further contended that the signature of the original defendant has been forged and therefore sought for investigation of documents. He further contended that the trial Court ought to have allowed the application.
6. Having heard learned counsel for the petitioner, it is the specific case of the plaintiff that the original defendant has borrowed a sum of Rs.2,00,000/- from the plaintiff on 08.11.2011 for domestic purpose and financial difficulties by executing on demand promissory note and consideration receipt in favour of the plaintiff. The defendant filed written statement denying the plaint averments and contended that the alleged promissory note is not at all executed by original defendant Gowramma and she has not borrowed any amount. The proposed documents are created and concocted which does not bear the signature of original defendant and the same has been forged. Therefore, the defendant sought for dismissal of the suit.
7. It is not in dispute that both the plaintiff and defendant have adduced their evidence and marked the documents. It is a suit for recovery of money. Therefore, the burden is on the plaintiff to prove that the original defendant had borrowed and executed promissory note which is liable to be paid and he is entitled to the amount sought for. When the defendant as per the written statement has totally denied the transaction that she has not executed any promissory note, it is for the plaintiff to establish his case based on the oral and documentary evidence produced before the Court. The application filed by the defendant for appointment of Court Commissioner to examine the admitted signatures on Ex.D2 and D4(a) and (b) and the disputed signatures on Ex.P1a and P2a is not maintainable. The trial Court considering the application filed has recorded a finding that the defendant’s evidence has already been completed wherein defendant has already produced the original sale deed and the documents which bear both the admitted and the disputed signatures. Further the trial Court has opined that the dates of Ex.D2 and D4 are entirely different and not of the same period. Therefore, no purpose would be served by appointing a handwriting expert. Accordingly, the application was rejected.
8. It is well settled that the plaintiff who filed recovery suit has to establish his case by producing oral and documentary evidence. He cannot succeed merely on the plaint averments. There was no need for the defendant to file application. The trial Court considering the prayer and objections, rightly rejected the application of the defendant by order dated 13.02.2019. The same is in accordance with law. The petitioner has not made out any ground to interfere under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
akc/ Sd/- JUDGE