IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.9839/2019(GM-CPC) BETWEEN:
SRI. JOHNSON S/O SRI. OBAYYA, AGED ABOUT 48 YEARS, CHURCH FATHER, R/O BOMMANAKATTE, BHADRAVATHI TALUK, SHIMOGA DISTRICT-577640.
... PETITIONER (BY SRI B.S. SHRINIVAS, ADVOCATE FOR SRI SANJEEV B. L., ADVOCATE) AND:
SRI SAMUEL, S/O SRI SOLOMON, AGED 48 YEARS, R/O UJJINIPURA KAGADANAGARA OISTM BHADRAVATHI SHIMOGA DISTRICT-577642.
**** ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 7.2.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, BHADRAVATHI, SHIMOGA ON IA NO.12 IN O.S.NO.315/2015 VIDE ANNEXURE-E AND ALLOW THE IA NO.12.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner – defendant filed the present writ petition against the order dated 7.2.2019 on I.A. No.12 made in O.S. No.315/2015 rejecting his application filed under Order 26 Rule 10A r/w Section 75 of the Code of Civil Procedure, to appoint an expert – Court Commissioner to ascertain the age of ink in respect of signatures of the defendant and writings made on suit pronotes and to call for the report.
2. The respondent - plaintiff filed the suit for recovery of Rs.4,49,800/- on the basis of two pronotes alleged to have been executed by the petitioner - defendant. The petitioner – defendant filed the written statement and denied the plaint averments. After completion of the plaintiff’s arguments, the defendant filed the present application under Order 26 Rule 10A r/w Section 75 of the Code of Civil Procedure to appoint an expert – Court Commissioner to ascertain the age of ink in respect of his signatures and writings made on the suit pronote and to call for the report. The said application was opposed by the plaintiff. The trial Court considering the application and the objections by the impugned order dated 7.2.2019 rejected the application. Hence the present writ petition is filed.
3. I have heard the learned counsel for the petitioner.
4. Sri B.S. Shrinivas, learned counsel for the petitioner – defendant contended with vehemence that the impugned order passed by the trial Court rejecting the application filed by the petitioner under Order 26 Rule 10A r/w Section 75 of the Code of Civil Procedure, is erroneous and contrary to the material on record and cannot be sustained. He further contended that the trial Court failed to notice that the petitioner has made out a prima facie case to appoint an expert – Court Commissioner to ascertain the age of ink in respect of the signatures and writings on the suit pronotes. Mere appointing the expert – Court Commissioner will not prejudice the case of the other side. The trial Court ought to have allowed the application. He further contended that the trial Court is not justified in coming to the conclusion that the petitioner has not at all disputed his signatures on the suit documents – Ex.P1 to Ex.P4. The trial Court ought to have seen that the petitioner has specifically pleaded the circumstances under which he has signed and issued the blank pronotes to the respondent and that to make unlawful gain by taking undue advantage of his signatures, the respondent got filled up the blanks in the pronotes and filed the suit. Therefore he sought to allow the writ petition.
5. Having heard the learned counsel for the petitioner, it is not in dispute that the respondent who is the plaintiff before the trial Court filed the suit for recovery of Rs.4,49,800/- on the basis of two alleged pronotes executed by the present petitioner. By careful reading of the grounds raised in the present writ petition, it clearly indicates that the petitioner has not disputed that he has signed on Ex.P1 to Ex.P4 and he has only stated that he has issued blank pronotes to the respondent and the respondent got filled up the blanks in the pronote and filed the suit.
6. The trial Court considering the entire material on record come to the conclusion that the defendant has not at all disputed the signatures on Ex.P1 to Ex.P4, which are the suit documents based on which the suit has been filed. In the absence of any scope for investigation to ascertain the age of ink on questioned documents, it is not at all justified in referring the suit pronotes and consideration receipts to an expert for the purpose of ascertaining the age of ink. Absolutely there is no specific defence either in his written statement or any reference during the course of cross-examination of the plaintiff and his witnesses to the effect that there is difference in the ink or its age. Further as there no dispute with regard to the signatures of the defendant on Ex.P1 to Ex.P4, it is not necessary to refer them to an expert for ascertaining the age of the ink. Accordingly, the application came to be rejected.
7. It is not in dispute that when the matter was posted for defendant’s arguments, at that stage the application was filed. The trial Court considering the entire material on record came to the conclusion that the application filed is devoid of merits and accordingly rejected the application. The same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE Gss/-