IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.9860 OF 2017 (GM-CPC) BETWEEN NFORCE INFRASTRUCTURE INDIA PVT. LTD, A COMPANY REGISTEREDUNDER THE PROVISIONS OF THE INDIAN COMPANIES ACT 1956, HAVING ITS PLACE OF BUSINESS AT “VICTORIA”, DOOR NO.25-14-840/1, NEAR VALENCIA CHURCH, KANKANADY, MANGALURU-575002.
REPRESENTED BY ITS MANAGING DIRECTOR MR. IVAN SEQUEIRA, MAJOR, RESIDING AT “VICTORIA”, DOOR NO.25-14-840/1, NEAR VALENCIA CHURCH, KANAKANADY, MANGALURU-575002. ...PETITIONER (BY SRI.CYRIL PRASAD PAIS, ADVOCATE) AND 1. MS. JULIET LOBO, D/O PETER LOBO, ADULT, RESIDING AT BEJAI, ABNEGUNDI ROAD, 4TH CROSS, BEJAI, MANGALURU-575702.
2. SRI. PETER LOBO, S/O LATE FRANCIS LOBO, ADULT, 3. MS. STELLA LOBO, D/O LATE FRANCIS LOBO, ADULT, 4. MS. GRETTA LOBO, D/O LATE FRANCIS LOBO, ADULT, 5. MS GRACY LOBO, W/O LATE WALTER LOBO, ADULT, 6. MS. GIZZEL LOBO, D/O LATE WALTER LOBO, ADULT, 7. MS. WENTESSA LOBO, D/O LATE WALTER LOBO, ADULT, RESPONDENTS NOS.2 TO 7 ARE RESIDING AT ROSE PETAL, B/1, VERONICA ROAD, BANDRA, MUMBAI-400050.
8. MR. PETER D’ SOUZA, S/O CELINE LOBO, ADULT 9. MS. JANET D’ SOUZA, D/O CELINE LOBO, ADULT, 10. STELLA D’ SOUZA, D/O LATE CELINE LOBO, ADULT, 11. MR PATRICK D’ SOUZA, S/O LATE CELINE LOBO, ADULT, RESPONDENTS NOS.8 TO 11 ARE RESIDING AT NO.23, HILTON HOUSE, D’ SOUZA WADI, WAGLE STREET, THANE, MUMBAI-400604.
12. MR. ZAVHARIAS VAZ, S/O LATE LUCY LOBO, ADULT, 13. MS. CELIN VAZ, D/O LATE LUCY LOBO, ADULT, R/A BEJAI NEW ROAD BEJAI MANGALORE-575702 14. MR. ANTONY VAZ, S/O LATE LUCY LOBO, ADULT, 15. MR. GREGORY VAZ, S/O LATE LUCY LOBO, ADULT, 16. MS. LEENA VAZ, D/O LATE LUCY LOBO, ADULT, RESPONDENT NOS.12 TO 16 ARE RESIDING AT BEJAI NEW ROAD, BEJAI, MANGALORE-575702.
17. MR. JOHN D’ SOUZA, S/O LATE GERTRUDE LOBO, ADULT, 18. MS. JANE D’ SOUZA, D/O LATE GERTRUDE LOBO, ADULT, 19. MS. JACINTHA, D/O LATE GERTRUDE LOBO, ADULT, 20. MS. GLADYS, D/O LATE GERTRUDE LOBO, ADULT, 21. MS. JOYCE D’ SOUZA, D/O LATE GERTRUDE LOBO, ADULT, RESPONDENTS 17 TO 21 ARE RESIDING AT BEJAI NEW ROAD, BEJAI, MANGALURU-575702. … RESPONDENTS (BY SRI. NATARAJ BALLALA, ADVOCATE FOR R1; NOTICE TO R-2 TO R-21 ARE D/W V/O DATED 9.8.2018) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 14.2.2017 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE, DAKSHINA KANNADA, MANGALORE IN O.S.NO.26/2012 IN I.A.NO.21 ON THE APPLICATION FILED U/S 73 OF THE INDIAN EVIDENCE ACT R/W SEC.151 OF CPC, 1908 VIDE ANNEX-A CONSEQUENTLY, ALLOW THE APPLICATION FILED BY THE PETITIONER BEFORE THE TRIAL COURT AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a specific performance suit in O.S.No.26/2012, is invoking the writ jurisdiction of this court for assailing the order dated 14.02.2017, a copy whereof is at Annexure – A, whereby the learned I Addl. Senior Civil Judge, Dakshina Kannada, Mangaluru, has rejected the application for forwarding the subject Agreement to Sell i.e. exhibit P.2 for forensic examination. The 1st respondent/defendant having entered appearance through his counsel, resists the Writ Petition, notice to other respondents/defendants having been dispensed with.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court grants indulgence in the matter because:
(a) the impugned order apparently has an error of law of great magnitude inasmuch as the learned Judge proceeded virtually on the assumption that Section 73 of the Indian Evidence Act is not invocable by the party at all; this is plainly wrong since court has always power to refer the document for forensic examination where the signature thereon is disputed;
(b) in this case, the Agreement to Sell at exhibit P.2 is in dispute; it’s signatures are contested; it is the consistent view of this court that when signatures on a document are disputed, ordinarily the court should not undertake its examination without the aid of the expert opinion, of course subject to all just exceptions into which the case of the petitioner does not fit; and, (c) no prejudice would have been caused to any party if the subject document is put at the hands of an expert for forensic examination in a time bound manner; the expert opinion becomes handy for taking a decision as to the authenticity/authorship of the documents in question; this opinion may go in favour of the respondents too.
In the above circumstances, this Writ Petition is favoured; the impugned order is set at naught; petitioner’s subject application having been allowed, the court below shall take immediate steps to have the document at exhibit P.2 forensically examined in a time bound manner so that the old suit of the year 2012 itself can be disposed off expeditiously, all contentions of the parties have been kept open.
The Court below shall ensure that forensic examination of the subject document is accomplished within a period of two months from the date a copy of this order is filed.
Costs made easy.
Sd/- JUDGE cbc