- 1 - ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NO.38396/2014(GM-CPC) BETWEEN SRI RAMESH, S/O SRI THIMMAIAH, AGED ABOUT 43 YEARS, RESIDING AT NO.19A, 3RD CROSS, KUVEMPUNAGAR, CHANNAPATNA, RAMANAGARA DISTRICT, PIN-571 511. ... PETITIONER (BY SRI S RAJU, ADVOCATE) AND SMT J SHALINI DAUGHTER OF SRI JAILINEGESH, WIFE OF SRI G.BOJARAJ, AGED ABOUT 33 YEARS, RESIDING AT 2ND CROSS, CHURCH ROAD, CHANNAPATNA, RAMANAGARA DISTRICT, PIN-571 511. ... RESPONDENT (BY SRI K M RAVI KUMAR AND SRI PARAMASHIVAIAH, ADVOCATES) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DT.9.7.2014 PASSED ON I.A.NO.11 IN R.A.NO.42/2013 BY THE LEARNED SENIOR CIVIL JUDGE, CHANNAPATNA AS PER ANNEXURE-H DISMISSING THE APPLICATION FILED BY THE PETITIONER U/O 26 RULE-10A OF THE CPC, AND THEREBY TO ALLOW THE SAID APPLICATION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant who has suffered decree of specific performance in OS.No.154/2010 has challenged the judgment and decree passed in the said suit in RA.No.42/2013 on the file of Senior Civil Judge, Channapatna. In the said appeal, he has filed an application in IA.2 under Order 26 Rule 10 A r/w Section 151 of CPC, wherein he would state that the signature and thumb impression at Ex.P1 are not the signature and thumb impression of appellant in said appeal, therefore, the same should be sent to scientific verification. The said application filed by him on 10.3.2014 is opposed by the respondent in the said suit, who is plaintiff in the court below. The lower appellate court on appreciation of the application as well as objections raised thereon, has rejected the same by its order dated 9.7.2014, which is sought to be challenged in this writ petition. The parties herein are referred to by their rank in the court below.
2. Heard the learned counsel for the petitioner/defendant. Perused the order impugned as well as the application in IA.2 and objections filed thereon which clearly indicate that the defendant had agreed to sell the suit schedule property to the plaintiff under agreement of sale dated 28.5.2007. It is clearly seen that in the agreement of sale the defendant and plaintiff have not only affixed their signatures but also affixed their thumb impressions. It is seen that Rs.1,30,000/- is received under the said agreement of sale as against the sale consideration of Rs.1,80,000/- by the defendant. Admittedly, in the suit for specific performance the defendant had taken inconsistent stand in stating at one place that he has not executed any agreement for sale of the property at paragraph No.2, however, when it comes to paragraph No.4 the defence is that, said agreement is time barred and inspite of defendant being ready and willing to execute the sale deed the plaintiff himself did not pay the balance sale consideration and got the sale deed executed. The said statement amounts to admission of execution of agreement of sale. It is on the basis of such defence and evidence of both the parties the suit is decreed by judgment and decree dated 3.6.2013.
3. The said judgment and decree of trial court is taken up in an appeal by the defendant in RA.No.42/2013 on the file of Civil Judge (Sr.Dn), Channapatna, where he has filed the present application in IA.2. In the affidavit filed in support thereof he has stated that though in his written statement he has denied execution of any agreement in favour of the plaintiff the plaintiff got created the document by forging his signature and thumb impression, that by oversight he could not file an application for referring the same for scientific verification. However, he has suppressed the other contradictory statement made by him in paragraph 4 of the written statement, where he stated that he was ready and willing to execute the sale deed but the plaintiff did not come forward to complete the transaction. Infact when once there is an admission to the effect of execution of agreement of sale by expressing that the defendant was ready and willing to complete his part of the agreement, it is not open for him to seek verification of thumb impression and signature in the agreement on the defence raised to the effect that he has not executed the sale agreement.
4. From this it is clear that, no doubt the parties are entitled to take inconsistent defence, but the same cannot be stretched to the extent where he would try to rely upon the statement in his written statement to an extent as if he is innocent and ignorant of entire transaction and the proceedings before the court below is decided without giving him sufficient opportunity. However, when the entire records are looked in to, it is seen that there is no reference to such an attempt being made by him when the suit for specific performance was pending before the court below. In that view of the matter, this Court is of the considered opinion that the reason assigned by the lower appellate court in rejecting IA.2 filed under Order 26 Rule 10 r/w Section 151 of CPC, appears to be just and proper, therefore, question of reconsidering the said order in this writ petition does not arise.
Accordingly, this writ petition is dismissed.
Sd/- JUDGE nd/-