IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY, 2017 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.31677/2017(GM-CPC) BETWEEN:
1. T.L. Swamy S/o Lingaiah Aged about 71 years 2. Smt. Kamalamma W/o T.L. Swamy Aged about 67 years 3. T.S. Sunilkumar S/o T.L.Swamy Aged about 41 years 4. T.S. Sowmya D/o T.L. Swamy Aged about 39 years 5. T.S. Ramya D/o T.L.Swamy Aged about 37 years 6. T.S. Divya D/o T.L.Swamy Aged about 29 years 7. Baby D/o T.S. Sowmya Aged about 3 years Minor Represented by her mother and Natural guardian T.S.Sowmya.
All are R/o Thoreshettyhalli Village Athagur Hobli, Maddur Taluk District-Mandya Pincode-571 428.
...Petitioners (By Sri Somashekhar Kashimath, Advocate) AND:
Sri M.Shanmugum S/o late Manikyam Aged about 56 years R/o #73/1, 6th Main Road Hosathippsandra Post Malleshwarapalya Extension, Maruthinagara, Bangalore City-560 068.
...Respondent This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order passed by Civil Judge (Sr. Dn.) Maddur, on I.A. No.10, U/O 26 Rule 10(A) r/w Section 151 of CPC in O.S.No.33/2011 dated 17.06.2017 at Annexure-G and consequently allow the I.A.No.10.
This Writ Petition coming on for preliminary hearing this day, the Court made the following:
O R D E R The defendants 1 to 7 filed the present writ petition against the order dated 17.6.2017 on IA No.10 made in O.S.No.33/2011 dismissing the application filed by the defendants under Order 26 Rule 10(A) r/w Section 151 of the Code of Civil Procedure.
2. The respondent-plaintiff filed a suit for specific performance contending that the defendants are absolute owners of the suit schedule properties and in possession and have executed an agreement of sale in favour of the plaintiff on 16.7.2007 for a valuable sale consideration of Rs.5,18,000/- and received Rs.1,00,000/- as advance on the date of agreement. Nine months’ time was stipulated from the date of sale agreement. Subsequently, the defendants 1 to 3 approached plaintiff on 14.9.2007 and requested him to pay Rs.1,00,000/- in the remaining sale consideration to meet their legal necessity. The plaintiff has paid Rs.1,00,000/- on 14.9.2007 to the defendants and executed an agreement for having received the amount. Again on 5.2.2010 the first defendant came to the plaintiff and requested him to pay Rs.50,000/- in the remaining sale consideration. Accordingly, plaintiff paid Rs.50,000/- and first defendant made a Shara on the agreement dated 14.9.2007 in and in spite of the repeated requests made by the plaintiff. The defendants have not executed the Sale Deed in terms of the agreement. Therefore, he had issued a legal notice and filed the suit for the relief sought for.
3. The defendants filed written statement admitted the agreement dated 16.7.2007 and receipt of the advance amount but denied the subsequent Shara made on the agreement dated 14.9.2007 and contended that the suit filed by the plaintiff is barred by limitation in terms of the contract entered into between the parties and suit is liable to be dismissed and also contended that the plaintiff was not ready and willing to perform his part of contract and has not issued notice to the defendants within nine months from 16.7.2007 and suit filed is barred by limitation. Therefore, sought for dismissal of the suit.
4. Though the application for appointment of Court Commissioner was filed before completion of evidence contending that the appointment of handwriting expert for comparison of admitted signature on Exs.P2 and 3 are necessary to resolve the dispute between the parties and has subsequently contended that though agreement dated 16.7.2007 on receipt of advance made of Rs.1,00,000/- was admitted, categorically denied that the plaintiff subsequently misused the stamp duty and forged the signature of defendants 5 and 6 in Exs.P2 and forged signature of first defendant on Rs.50/- stamp paper on the reversed side marked as Ex.P3. The signatures of defendants 4, 5 and 6 on Ex.P2 and signature of first defendant on Ex.P3 are forged signatures. Therefore, the application was filed.
5. The said application was resisted by the plaintiff by filing objections. The plaintiff contended that the application filed is belated and liable to be dismissed. The plaintiff further contended that the Court can compare the disputed and admitted signatures by exercising power under Section 73 of the Evidence Act.
6. Though the application was filed before completion of evidence, it was considered by the trial Court after completion of evidence on both sides . The trial Court considering the application and objection, by the impugned order dated 17.6.2017 has dismissed the application. Hence, the present writ petition is filed.
7. I have heard the learned counsel for the parties to the lis.
8. Sri Somashekhar Kashinath, learned counsel for the petitioners-defendants vehemently contended that the impugned order passed by the trial Court rejecting the application filed by the defendants under Order 26 Rule 10(A) r/w Section 151 of CPC is erroneous, contrary to the material on record. He further contended that though the defendants have specifically denied the signatures on Exs.P2(a), (b) and (c) and on Ex.P3A, the trial Court proceeded to dismiss the application without considering the controversy between the parties. He further contended that DW1 in cross-examination denied the Shara and also Ex.P3(A) and Ex.P2(a). Therefore, the trial Court ought to have allowed the application. Hence, he sought to quash the impugned order passed by the trial Court by allowing the present writ petition.
9. Having heard the learned counsel for the petitioner it is undisputed fact that the respondent who is the plaintiff before the trial Court filed a suit for specific performance alleging that the defendants have executed an agreement of sale in favour of the plaintiff on 16.7.2007 for a sale consideration of Rs.5,18,000/- and received Rs.1,00,000/- an advance amount on the same day. It is further case of the plaintiff that subsequently, the defendants have received an amount of Rs.1,50,000/- as advance in the remaining sale consideration on different dates. The defendants have denied the Shara made in the agreement and contended that though the agreement was executed on 16.7.2007, the suit filed by the plaintiff is barred by limitation. It is categorically denied the signatures on Exs.P2(a), (b) and (c) and Ex.P3(A) in the Shara and contended that the said signatures are forged by the plaintiff. The trial Court considering the entire material on record recorded a specific finding as under:
“It is relevant thing to note that as per the provision of order 26 Rule 10A of CPC, the court can appoint a Commissioner for Scientific Investigation where any question arising in a suit involves any Scientific Investigation and if the court comes to the conclusion that the same cannot in the opinion of the court be conveniently conducted by it. In that regard, the court has to exercise the discretion judiciously by examining the evidence placed on record. It is also relevant to consider that the report of the Commissioner is a piece of evidence and that has to be considered with the other evidence available on the record. The report of the Commissioner will not be a conclusive proof to arrive at proper conclusion. In the present suit as already observed supra, the DW-1 has given his evidence regarding the Ex.P2 and P3 and the signatures found on them. Whether the said signatures were obtained by the plaintiff, by playing fraud or mis-representation has to be ascertained by the court by considering the materials placed on record. Absolutely, there are no grounds made out at this stage to refer the matter to the hand writing expert to give his opinion and report regarding the admitted and disputed signatures of the defendants 1 to 5. Hence, I find no grounds in the application. Accordingly, I answer this point in the negative.”
Accordingly, trial Court rejected the application.
10. The material on record clearly indicates that the respondent-plaintiff filed a suit for specific performance. He has to prove the agreement, readiness and willingness as contemplated under Section 16(c) of the Specific Relief Act. It is for the plaintiff to establish as to when defendants have executed the agreement and received sale consideration and further advance amount as contended in the plaint including Shara. When the defendants have denied the signatures made on the Shara and have taken a specific contention that plaintiff has forged the signatures, it is for the plaintiff to establish the case whether the defendants have executed the Shara on the agreement.
11. In view of the same, the impugned order passed by the trial Court is just and proper and defendants have not made out any ground to interfere with the impugned order in exercise of power under Article 227 of the Constitution of India.
Accordingly, this writ petition is dismissed.
Sd/-
JUDGE AP