IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.34178-34179 OF 2018 (GM-CPC) BETWEEN:
1. Mrs. Noorjan Aged about 66 years, W/o late Syed Abdul Rahaman 2. Mrs. Ayusha Tabassum D/o Nadira Begum, Aged about 24 years 3. Mr. Mohammed Muzamil S/o Nadira Begum, Aged about 26 years, 4. Mrs. Fouzia Begum Aged about 46 years, D/ o late Syed Abdul Rahaman 5. Mr. Syed Aslam Pasha Aged about 44 years, S/o late Syed Abdul Rahaman 6. Mr. Syed Akram Pasha Aged about 42 years, S/o late Syed Abdul Rahaman 7. Mrs. Teseera Begum Aged about 39 years, D/o late Syed Abdul Rahaman All are R/at No.9/2, 3rd Cross, Marappa Thota, J.C. Nagar, Bengaluru – 560 006. (By Sri. Ananda .K, Advocate) AND:
1. Mr. Ayub Ahmed .N S/o Nazeer Ahmed, Aged about 49 years, R/at No.28/2, Yellappa Street, Krumbigal Road, Chikkamavalli, Bengaluru – 560 004.
2. Mr. Nazeer Ahmed S/o late Abdul Gafar, Aged about 91 years, R/at No.28/2 Yellappa Street, Krumbigal Road, Chikkamavalli, Bengaluru – 560 004.
(By Sri. Zameer Pasha, Advocate N.Dhananjaya- Trial Court copy served) … Petitioners … Respondents These Writ Petitions are filed under Article 227 of the Constitution of India, praying to call for the records, peruse the same, hear the parties and set aside the order dated 11.06.2018 passed on I.A. No.8 in O.S. No.5431/2014 by the learned City Civil Judge, Bengaluru at Annexure-G and to set aside the order dated 19.07.2018 passed on I.A. No.10 in O.S. No.5431/2014 by the learned City Civil Judge, Bengaluru at Annexure-K and allow the applications filed by the petitioners at Annexure-E and H.
These Petitions coming on for Preliminary Hearing this day, the Court made the following:-
ORDER The petitions are admitted for hearing. With the consent of both parties, the same is heard finally.
2. In these petitions filed under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 02.06.2018 as well as order dated 19.07.2018 by which applications filed by the petitioners under Order XXVI Rule 10A of Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short) have been rejected.
3. The facts giving rise to filing of the writ petitions briefly stated are that one Syed Abdul Rehaman was the absolute owner of the suit property. Petitioner No.1 is the wife whereas, petitioner Nos.2 to 7 are his children and grand children. The said Syed Abdul Rehman expired in the year 1990. The suit property revolved on the petitioners. The petitioners sold the west portion of the suit property to respondent No.1 and retained the eastern portion of the property. However, it is the case of the petitioners that respondent No.2 forged signature of petitioner No.1 in the GPA and executed a sale deed in favour of respondent No.1 in the year 2004. It is also averred in the plaint that the aforesaid fact came to the knowledge of the petitioners in the year 2013. Thereafter, petitioners filed the suit seeking cancellation of the sale deed and GPA. After the parties had adduced the evidence, the petitioners filed an application under Order XXVI Rule 10A of the Code by which comparison of signature on the plaint and vakalathnama with the disputed signature appearing in the GPA was sought. The aforesaid application was rejected by the trial Court by order dated 02.06.2018 on the ground that plaintiff No.1 has denied her signature on the plaint as well as vakalathnama. Thereafter, the petitioners filed another application i.e., under Order XXVI Rule 10A of the Code by which the plaintiffs sought comparison of the admitted signature on the deposition sheet with the signature appearing in the GPA which is disputed by petitioner No.1. The aforesaid application was rejected by the trial Court by Order dated 19.07.2018 on the ground that the same is barred by resjudicata.
4. Learned counsel for the petitioners submitted that the comparison of the admitted signature with the disputed signature appearing in the GPA is necessary for proper and fair adjudication of the controversy involved in the suit.
5. On the other hand, learned counsel for the respondents submitted that two applications were filed with a view to fill up the lacuna and therefore, the trial Court has rightly rejected the applications filed by the petitioners under Order XXVI Rule 10A of the Code. It is also submitted that no document executed by the petitioners in the year 2004 was submitted for comparison, as the GPA was executed in the year 2004. It is also submitted that the impugned order does not call for any interference by this Court.
6. I have considered the submissions made by learned counsel for the parties and perused the records. From the pleadings of the parties, it is evident that the entire claim of the plaintiffs is based on the fact that petitioner No.1 has not signed the GPA. In order to decide the aforesaid issue, the opinion of a handwriting expert is necessary. It is prudent to note that opinion of handwriting expert is only a piece of evidence. In the first application, the petitioner was seeking comparison of her signature on the plaint and vakalathnama and her signature appearing in the GPA which was disputed by her. The aforesaid application was rejected. Thereafter, the petitioners filed another application in which a prayer was made to compare her admitted signature on the deposition sheet along with the disputed signature on the GPA. Thus, the reliefs claimed in both the applications were different and therefore, second application filed by the petitioners could not be said to be barred by resjudicata.
7. Needless to state that the respondents shall have liberty to examine the handwriting expert and shall be at liberty to file objections to the same. Thus, the respondents shall not suffer any prejudice. The opinion of handwriting expert is necessary to determine the controversy involved in the suit. However, over a period of 10 years, signature of a person may vary.
8. The impugned orders dated 02.06.2018 and 19.07.2018 passed by the trial Court suffers from error apparent on the face of the record and jurisdictional infirmity.
Accordingly, the impugned orders dated 02.06.2018 as well as 19.07.2018 passed by the trial Court are hereby quashed and the applications filed by the petitioners under Order XXVI Rule 10A of the Code are allowed. The trial Court is directed to ensure that the handwriting expert submits his opinion within a period of four weeks from today and shall file a report before the trial Court. Accordingly, the petitions are disposed of.
Sd/- JUDGE dn/-