IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08th DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR W.P.NO. 7374/2016 (GM-CPC) BETWEEN:
SMT. MAHABOOBJAN SINCE DECEASED BY HER LR’S SMT. K. SAJEEDA BEGUM ALIAS K. SHAMEEM BEGUM W/O SRI. Y. JABBA BASHA NO.30, BEGUM SAHIB 3RD LINE, MISHAPET ROYEETTAI, CHENNAI-14. ... PETITIONER (BY SRI.K.V. LAKSHMANACHAR, ADVOCATE) AND:
1. SRI. BALAJI AGED ABOUT 50 YEARS S/O VENKATASWAMY R/AT NO.29, 4TH MAIN 3RD CROSS, NANJAPPA LAYOUT, AUDUGODI BANGALORE-560 030.
2. SRI. B. BASAVARAJA AGED ABOUT 59 YEARS S/O LATE BASAVAIAH R/AT NO.24/1, 2ND CROSS BALAPPA LAYOUT KORAMANGALA BANGALORE-560 030.
(THE 2ND RESPONDENT IS ONLY A FORMAL PARTY AND NO RELIEF IS CLAIMED AGAINST THE 2ND RESPONDENT) ... RESPONDENTS (BY SRI.S.VENKATESHWARA BABU, ADVOCATE FOR R-1) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDERS DATED 12.01.2016 PASSED IN O.S.NO.7110/2006 ON THE FILE OF THE XI ADDL. CITY CIVIL JUDGE, (CCH-8), BANGALORE (ANNEXURE-F) BY ALLOWING THE WRIT PETITION.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri K.V. Lakshmanachar, learned Advocate appearing for petitioner and Sri. S Venkateshwara Babu learned Advocate appearing for respondent No.1. Notice to respondent No.2 is dispensed, since petitioner has clearly stated in the note made in the cause title of writ petition that respondent No.2 is only a formal party and no relief is claimed against him in this writ petition.
2. First respondent herein has filed a suit in O.S.No.7110/2006 for specific performance to direct defendants to execute registered sale deed in respect of suit property in his favour as agreed to under the agreement of sale dated 09.01.2006 by receiving the balance sale consideration. During the pendency of the proceedings, an application – I.A.No.2 under Order 26 Rule 10A CPC came to be filed on 12.09.2007 by first defendant praying for referring the signature of first defendant as found in the alleged sale agreement dated 09.01.2006 said to have been executed by her in favour of plaintiff for being compared with the admitted signatures as found in the vakalathnama and written statement for scientific investigation i.e., hand writing expert and for comparing these two signatures. Said application came to be resisted to by the plaintiff by filing statement of objection. Trial Court by impugned order has rejected the said application.
3. It is the contention of Sri. K.V. Lakshmanachar, learned Advocate appearing for petitioner that impugned order passed by the trial Court is erroneous since it has failed to consider the tenor of cross examination of P.W.1 whereunder he has admitted that signature of first defendant found in Ex.P.1 differs from the signature found in her vakalathnama and first defendant had also stated in her cross examination that her signature is found only in two pages of Ex.P.1 and not in all pages of Ex.P.1. It is also contended that first defendant had specifically denied the execution of agreement of sale and signature found on the said agreement marked as Ex.P.1. In order to resolve the real controversy between the parties, trial Court ought to have allowed the application.
4. Per contra Sri. S. Venkateshwara Babu, learned Advocate appearing for first respondent-plaintiff would support the impugned order and prays for dismissal of the writ petition.
5. Having heard the learned Advocates appearing for parties and on perusal of the impugned order as well as pleadings as laid before the trial Court, it would disclose that application in question had been filed way back in the year 2007 and rightly said application was not considered by the trial Court at earlier point of time, since trial was yet to be concluded and obviously for this reason it had deferred consideration of said application and only on conclusion of trial, said application has been taken up for consideration and has been dismissed by the impugned order. It also requires to be noticed that first defendant who had filed the written statement and had denied signature found in Ex.P-1 namely, agreement of sale dated 09.01.2006 has also reiterated her stand in the Examination-in-Chief. However, in the cross – examination dated 24.07.2012 when she was confronted with the document in question namely, Agreement of Sale dated 09.01.2006- Ex. P-1 and signature found therein, she has unequivocally admitted that signatures found at page Nos.2 and 3 is her signature. In fact, in the very same cross examination, she has also admitted that she has executed agreement of sale in favour of second defendant in respect of suit property for a consideration of Rs.52 lakhs. It is no doubt true that all the signatures found in Ex.P-1 has not been confronted to D.W.1. Only on the said ground, document in question cannot be sent for forensic expert or document in question cannot be sent for scientific examination in piece meal particularly in the background of D.W.1 herself admitting in the cross examination that signatures found in Ex.P.1 (at pages nos. 2 and 3) are her signatures.
6. That apart, admission of P.W.1 in the cross examination to the effect that signature of first defendant found in Ex.P.1 and her signature found in vakalathnama differs by itself would not be a ground to refer the document for forensic expert or to compare the signatures as found in Ex.P.1. If denial of first defendant was absolute and in toto, contention of Sri. K.V. Lakshmanachar, learned Advocate appearing for petitioner would have merited acceptance. In the light of first defendant’s admission in the witness box that signature found at page nos.2 and 3 of Ex.P-1 is her signature, question of referring said document to an expert namely, forensic expert for being compared with the admitted signature of first defendant would not arise. Hence, I do not find any merit in this writ petition. Accordingly, writ petition stands rejected.
However, it is made clear that no opinion is expressed with regard to the merits and parties are at liberty to address their arguments before trial Court on this issue and trial Court is at liberty to consider the same on merits and in accordance with law and without being influenced by any observations.
Ordered accordingly.
SD/- JUDGE *sp