IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2019 BEFORE THE HON'BLE MR.JUSTICE KRISHNA S DIXIT WRIT PETITION NO.35356 OF 2015 (GM-CPC) BETWEEN:
RAMAPRASAD KAMATH, S/O LATE A N KAMATH, AGED ABOUT 56 YEARS, RESIDING AT NO.63/1, FOUNTAIN ROAD, TILAKNAGAR, MANDI MOHALLA, MYSURU - 570 001. ... PETITIONER (BY SRI O SHIVARAMA BHAT, ADVOCATE) AND:
SRI RAM MOHAN KAMATH, AGED ABOUT 72 YEARS, S/O LATE A N KAMATH, 1938, K R STREET, D MOHALLA, MYSURU - 570 001. ... RESPONDENT (BY SRI K J KAMATH, ADVOCATE FOR R1, VIDE ORDER DATED 18.09.2015, R2 TO R8 DELETED) RESPONDENT NO. 2 TO 8 ARE DELETED AS PER THE ORDER/PERMISSION OF THIS HON’BLE COURT DT:18.09.2015.
**** THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 3.7.2015 PASSED ON I.A. NO. XII IN O.S. NO. 624/2007 ON THE FILE OF THE PRINCIPAL JUDGE, SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSURU VIDE ANNEXURE-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The 6th plaintiff has presented this writ petition assailing the order dated 03.07.2015 on I.A. No.12 filed by the 1st respondent herein in a partition suit in O.S. No.624/2007, whereby, the learned Principal Judge, Court of Small Causes and Senior Civil Judge, Mysore, has granted the prayer made therein and thereby directed the forensic examination of Exhibit-P12 which happens to be the Agreement dated 30.11.2001. After service of notice, the respondents have entered appearance through their counsel who resist the writ petition.
02. Learned counsel for the petitioner vehemently contends that the Agreement dated 30.11.2001 is not disputed in the Written Statement filed by the defendants or in the pleadings filed by the other plaintiffs and even otherwise also, the issue as to the genuineness of the signature of the father of the parties namely late A.N.Kamath pales into insignificance, since none of the parties to the litigation has disputed its genuineness.
03. Although ordinarily, it is open to the trial Court to direct forensic examination of the signatures of the executants of the document, there has to be cogent reason for adopting such a course and such reason being absent, the impugned order could not have been made; so arguing, the learned counsel seeks allowing of the writ petition, banking upon a decision of this Court in the case of INDIAN INSTITUTE OF COMPUTER SCIENCE LTD. vs. CALISYS TECHNOLOGY PRIVATE LIMITED reported in 1999 (4) KCCR SN 533.
04. The learned counsel for the contesting respondents with equal vehemence, contends that the impugned order directing forensic examination of father’s signature on the document at Exhibit-P12 has not put the petitioner to any prejudice; verification of the said signature by an expert body would facilitate due adjudication of the lis in question and that the said forensic examination now directed to be undertaken could have been accomplished in no time and because of this writ petition, the proceedings are being kept pending in the Court below and therefore, there is no warrant for indulgence of the writ Court. So arguing, he seeks dismissal of the writ petition.
05. I have heard the learned counsel for the petitioner and the learned counsel for the contesting respondents. I have perused the writ petition papers and I have adverted to the ruling cited at the Bar.
06. The suit in O.S. No.624/2007 is by brothers and sisters; it is filed in the year 2007 seeking a decree of partition and separate possession of the subject property; the signature allegedly of the father of the parties appearing on the document at Exhibit-P12, i.e., the Agreement dated 30.11.2001 is not disputed by any of the parties in their pleadings; the 1st respondent who happens to be the 1st defendant in the suit has filed his Written Statement explaining the circumstances which resulted into his putting signature to the said document; but here too, he has not disputed the signature of his father. That being so, there was no justification for the Trial Judge to make the impugned order directing forensic examination of the document – Exhibit-P12 for ascertaining the authenticity of the signature.
07. Now assuming that signature appearing on the document in question which purports to be of the father of the parties is not genuine, still the same would pale into insignificance, regard being had to the battle lines being drawn up by the parties by filing their pleadings. More particularly, when the 1st respondent herein who happens to be the 1st defendant in the suit has not disputed the said signature nor his own signature on the said document, although, he wants to explain the circumstances that led to planting his signature. The ruling cited by the learned counsel for the petitioner supports his submission. Thus the course of action now adopted by the Trial Judge by virtue of the impugned order is unsustainable. The impugned order accordingly is set aside.
08. Since the pleadings are complete, issues have been framed and evidence is being recorded, the suit being of the year 2007, the learned Trial Judge is directed to accomplish the trial and dispose off the suit within an outer limit of nine months and report compliance of this direction to the Registrar General of this Court.
09. It is needless to mention that the observations made herein above being confined to disposal of this writ petition, shall not influence the findings to be recorded by the trial Court in any way.
No costs.
Sd/-
JUDGE SJ