IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 54738 OF 2018 (GM-CPC) BETWEEN:
S DOMINIC, S/O SANDYAGAPPA, AGED ABOUT 58 YEARS, NO.2, ARUN NILAYA, NEAR RING ROAD, JOJAPPA COMPOUND, VEERANNAPALYA, ARABIC COLLEGE POST, BENGALURU – 560 077.
(BY SRI. SHANMUKHAPPA, ADVOCATE) AND:
SRI. RAMAPPA, S/O LATE VENKATAPPA, AGED ABOUT 86 YEARS, OOGALANAGEPALLI VILLAGE, MALLASANDRA POST, KASABA HOBLI, BAGEPALLI TALUK, CHIKBALLAPUR DISTRICT – 561 118.
… PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 09.11.2018 PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA IN R.A.NO.50/2016 ALLOWING THE SAID APPLICATION FILED BY THE OPPONENT UNDER ORDER XLI RULE 27 AND ORDER XXVI RULE 10(A) R/W SEC. 151 OF CPC, I.A.NO.1 SEEKING APPOINTMENT OF COMMISSIONER/ FINGER PRINT EXPERT FOR SCIENTIFIC INVESTIGATION FOR COMPARING DISPUTED AND ADMITTED LEFT HAND THUMB IMPRESSION OF THE RESPONDENT VIDE ANNEX-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the respondent in R.A. No. 50/2016 is invoking the writ jurisdiction of this Court for assailing the order dated 09.11.2018 a copy whereof is at Annexure-A whereby the learned III Additional District Judge, Chickballapura, having favoured application filed under Order XXVI Rule 10(A) read with Section 151 of CPC, 1908 has directed forensic examination of the subject Agreement to Sell dated 19.10.2001 which is marked as Ex.P2. Despite service of notice, the respondent has chosen to remain unrepresented.
2. Having heard the learned counsel for the petitioner and having perused the writ petition papers, this Court declines to grant indulgence in the matter because:
(a) the petitioner in the trial Court had specifically taken up the contention in his Written Statement that the subject document is concocted one and therefore he had applied for having the same forensically examined by an expert; however, the trial Court did not favour the request;
(b) the suit having been decreed, the subject appeal is filed against the said decree; a specific contention is taken in the Appeal Memo as to the error of law since the trial Court had not favoured his request; the lower appellate Court in its discretion and wisdom has allowed respondents application and thereby directed the forensic examination of the subject document namely Ex. P2; this order cannot be faltered since it is a product of discretion vide TRIMBAK GANGADHAR TELANG Vs. RAMCHANDRA GANESH BHIDE, AIR 1977 SC 1222;
and, (c) it is the consistent view of this Court that where the contention as to concoction of a documents is taken up, it is unsafe for the Courts to form an opinion as to the authenticity of the signatures contained in the said document without the aid of expert opinion; this apart, if the expert examines the document and gives an opinion this way or that way, the same becomes handy for the adjudication of the lis between the parties; the challenge by the petitioner to the impugned order is preposterous, to say the least.
In the above circumstances, this writ petition is dismissed;
The Court below is directed to ensure expeditious accomplishment of the forensic examination of the subject document at the cost of the respondent.
All other contentions of the parties are kept open. No costs.
Sd/- JUDGE Bsv