IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.9323/2019 (GM-CPC) BETWEEN:
SRI. R.MELGIPSON, AGED ABOUT 38YEARS, S/O. J.RAJASHEKAR, RESIDING AT NO.1732, 4TH CROSS, CHRISTIAN COLONY, MANDYA CITY-571 401 ... PETITIONER (BY SRI. P.NATARAJU, ADV.) AND:
SMT. N.RENUKA, AGED ABOUT 47 YEARS, W/O. N.VARADARAJACHAR, RESIDING AT NO.2848 5TH CROSS, GANDHINAGAR, MANDYA CITY-571 401 ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSD BY THE LEARNED I ADDL. SENIOR CIVIL JUDGE AND CJM AT MANDYA IN O.S.NO.76/2016 DTD:5.2.2019 VIDE ANNEXURE-F AND MAY BE PLEASED TO ALLOW THE APPLICATION FILED UNDER ORDER 26 RULE 10[A] R/W SECTION 151 OF CPC FILED BY THE PETITIONER ON IT'S FILE AS PRAYED FOR.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner has challenged the order dated 05.02.2019 passed by I Additional Civil Judge & CJM, Mandya on I.A. filed by the defendant/petitioner under Order 26 Rule 10 (a) read with Section 151 of CPC seeking an order to appoint a handwriting expert as Commissioner.
2. The respondent herein has filed a suit against the petitioner in O.S.No.76/2016 seeking for relief of the specific performance of contract. In the said proceedings, the petitioner has filed an application under 26 Rule 10 (a) read with Section 151 of CPC. The same being dismissed, the petitioner is before this Court.
3. Learned counsel for the petitioner would submit that the two documents i.e., Ex.P1 as well as Ex.D1 were executed on the same date. The document Ex.D1 establishes that the consideration amount agreed upon between the parties was Rs.41 Lakhs. The plaintiff having disputed the signature in Ex.D1, the Court below dismissed the application contrary to the material facts available on record. Accordingly, the petitioner seeks for interference of this Court.
4. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and perused the material on record.
5. It is not in dispute that Ex.D1 is not registered whereas the agreement of sale of the suit property on the basis of which the plaintiff has instituted the suit has been registered. The finding of the trial Court that no foundation has been laid down by the petitioner for referring Ex.D1 to handwriting expert appears to be justifiable. Moreover, the burden lies on the plaintiff to prove the agreement of sale of the suit property. Merely for denial of the signature by the plaintiff in Ex.D1, the unregistered document need not be referred to handwriting expert. The said exercise of getting the handwriting expert report would be of no relevance qua the pleadings. The reasons assigned by the trial Court being justifiable and there being no error found in the order impugned, no interference is warranted by this Court.
Writ petition stands dismissed.
Sd/- JUDGE VM CT:HR