IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA W.P.No.33261/2016 (GM-CPC) BETWEEN :
SRI A.MAHADEVAIAH W/O LATE APPAJAIAH AGED ABOUT 41 YEARS R/AT ANAKANATHAPURA VILLAGE ATHAGUR HOBLI, MADDUR TALUK MANDYA DISTRICT-571421 ...PETITIONER (BY SRI KALYAN R., ADV.) AND :
1. SRI PRAMODA SWAMY S/O SHIVAMADAIAH AGED ABOUT 26 YEARS 2. SRI KUMARASWAMY S/O SHIVAMADAIAH AGED ABOUT 24 YEARS BOTH ARE R/AT ANAKANATHAPURA VILLAGE ATHAGUR HOBLI, MADDUR TALUK MANDYA DISTRICT-571421 …RESPONDENTS (BY SRI L.RAJA, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 20.04.2016 IN O.S.NO.56/2006 ON IA NO.26 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC AT MADDUR AS PER ANNEX-A TO THE W.P. AND CONSEQUENTLY TO ALLOW THE APPLICATION FILED BY THE PETITIONER FOR APPOINTMENT OF COMMISSIONER.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel Sri.Kalyan.R for the petitioner as well as learned counsel Sri.L.Raja for the respondents.
2. The petitioner has challenged the order dated 20.4.2016 passed on I.A.No.26 in O.S.No.56/2006 on the file of the I Addl. Civil Judge & JMFC, Maddur (‘Trial Court’ for short) whereby the application filed by the petitioner under Order 26 Rule 10(A) of CPC seeking appointment of Court Commissioner i.e. appointment of an expert to compare the thumb impression of deceased Channappa appearing on Ex.P1 and also to compare the signature of Maralusiddaiah appearing on Ex.D14, with the admitted signatures, has been rejected.
3. It is the contention of the learned counsel appearing for the petitioner/plaintiff that the signature in the alleged Will of Maralusiddaiah on which reliance is placed on by the defendants requires to be examined by an expert as the said signature is disputed by the plaintiff/petitioner. The Trial Court without appreciating the same, dismissed I.A. in a perfunctorily manner.
4. Learned counsel for the respondents/defendants justifying the impugned order submits that the Trial Court rightly dismissed the application for the reasons that the Will has to be proved by the defendants and if the signature is disputed by the petitioner, that itself would not be suffice for appointment of an expert to compare the signature of Sri.Maralusiddaiah in the Will marked and exhibited by the defendants.
5. It is a very settled law that marking and exhibiting a document itself is not a proof of the document.
The burden lies on the party relying on the document to prove the same.
6. Considering the same, the Trial Court observed that the present application appears to have been filed to disprove the alleged Will relied on by the defendants. As seen from the records, the Original Suit is of the year 2006 and it is now set down for final arguments and at this stage, the application now filed by the petitioner is not necessary for effective adjudication of the dispute between the parties and more particularly for the plaintiff to disprove the Will relied upon by the defendants. Hence, no jurisdictional error is found in the order impugned.
Accordingly, the writ petition stands dismissed.
Sd/- JUDGE Dvr: