IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO.54044 OF 2017 (GM-CPC) BETWEEN:
SRI.C.RAMESH S/O LATE PATEL CHIKKEEREGOWDA 54 YEARS, RESIDING AT SAMRUDDI NILAYA 2ND CROSS, VIVEKANANDA NAGAR WARD NO.27 RAMANAGARA TOWN – 562 159 ... PETITIONER (BY SRI.MAHESH A.S., ADVOCATE) AND:
SMT.SHIVALINGAMMA W/O MANJUNATH AGED ABOUT 43 YEARS R/AT KEMPEGOWDANADODDI VILLAGE KASABA HOBLI, RAMANAGARA TALUK RAMANAGARA DIST. – 562 159 ...RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 13.11.2017 ON I.A.2 IN O.S.NO.152/2014 ON THE FILE OF ADDL. SR. CIVIL JUDGE, RAMANAGAR VIDE ANNEXURE-F, ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The present writ petition is filed against the impugned order dated 13.11.2017 on I.A.No.2, filed by the defendant under Order 26 Rule 10 of the Code of Civil Procedure, keeping the application in abeyance to consider the same after completion of evidence of the parties.
2. The respondent, who is the plaintiff before the Trial Court, filed the suit for a direction directing the defendant to receive a sum of `2 lakh, the remaining amount and execute the sale deed and deliver possession mainly contending that the defendant has executed the agreement dated 25.2.2011 stating that he has received `7 lakh and remaining `2 lakh will be paid within three years from the date of agreement and the sale deed will be executed. In spite of repeated requests, the defendant has not executed the sale deed. Therefore, the plaintiff filed the suit.
3. The defendant filed the written statement, denied the entire plaint averments and contended that the very suit filed by the plaintiff is not maintainable and the defendant is the absolute owner and in possession of the suit schedule property. The revenue records also stand in the name of the defendant. The defendant purchased the suit property from the plaintiff under a registered sale deed dated 5.7.2004. On the basis of the said registered sale deed, the defendant came into possession of the suit schedule and got the revenue records changed into his name. The plaintiff has sold the suit property in favour of the defendant for the legal necessity of his family and the sale deed was registered on 5.7.2004. At the time of purchase of the suit property, there was a loan borrowed from Land Development Bank on the suit property. The defendant has cleared the loan part by part and obtained clearance certificate from the concerned authority. Therefore, the very suit filed by the plaintiff is not maintainable.
4. It is further contended by the defendant that they never entered into any kind of transaction subsequent to the sale deed dated 5.7.2004 executed by the plaintiff and the documents relied upon by the plaintiff in the suit are all concocted in order to defraud the defendant. More over, the documents relied upon by the plaintiff are concocted in collusion and at the instigation of one M.Muttahaih @ Muthanna, who is inimical with defendant. The said Muttaiah @ Muttanna has filed a suit against him in O.S.No.119/2004. Therefore, he sought for dismissal of the suit.
5. Before the commencement of the evidence, the defendant filed an application under Order 26 Rule 10 read with 151 of the Code of Civil Procedure, seeking to send the document relied upon by the plaintiff, i.e., the document dated 25.2.2011 (alleged to be an agreement of re- conveyance) to a hand writing expert, the Forensic Laboratory for comparison of the signatures on the said document with the signatures of the defendant on the written statement and objections filed by him, reiterating the averments made in the written statement. The said application was opposed by the plaintiff by filing objections.
6. The Trial Court, by the impugned order, has kept the application in abeyance, observing that the same would be considered after completion of evidence. Hence, the present writ petition is filed.
7. I have heard the learned counsel for the petitioner.
8. Sri.Mahesha A.S., the learned counsel for the petitioner contended that the impugned order passed by the Trial Court keeping the application in abeyance is erroneous and contrary to the material on record. When the suit itself is not maintainable, even before commencement of evidence, the Trial Court ought to have allowed the application and send the document dated 25.2.2011 (alleged to be an agreement of re-conveyance) to the hand writing expert to compare the signatures therein and signatures of the defendant on the written statement and objections, to know whether it is a fraudulent document. The Trial Court ought not to have passed the orders keeping the application in abeyance.
Therefore, he sought to quash the impugned order by allowing the writ petition.
9. Having heard the learned counsel for the petitioner, it is not in dispute that the plaintiff filed the suit for specific performance of re-conveyance on the basis of the alleged agreement of re-conveyance dated 25.2.2011. The same is disputed by the defendant contending that he never executed such document. It is for the plaintiff to establish his case, after full fledged trial, if initial burden is discharged by the plaintiff, then only burden is shifted on the defendant. Even before commencement of evidence, the present application is filed. Though the application was premature, the Trial Court instead of dismissing the application kept the application in abeyance to be considered after completion of evidence of the parties. No adverse orders is passed against the interest of the petitioner. Therefore, the writ petition is not maintainable at this stage.
10. For the reasons stated, the writ petition is disposed of with liberty to the petitioner to pursue the pending application after completion of evidence of both sides and the Trial court shall consider the same and pass orders in accordance with law.
Sd/- JUDGE AHB