Smt Farkunda, vs Shri. Abdul Khaliq Ansari
2021 Latest Caselaw 1855 Kant

                          1

  IN THE HIGH COURT OF KARNATAKA, BENGALURU

     DATED THIS THE 31ST DAY OF MARCH, 2021

                      BEFORE

     THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

     WRIT PETITION NO.35932 OF 2016(GM-CPC)
BETWEEN:

1. SMT FARKUNDA,
   W/O LATE ABDUL SATHAR SAB,
   AGED ABOUT 54 YEARS,
   R/AT GAFFAR KHAN MOHALLA,
   CHINTHAMANI CIRCLE,
   SRINIVASAPURA TOWN-563135.
   KOLAR DISTRICT.

2. SHRI. R. ABDUL KHALEEL,
   S/O LATE ABDUL RASOOL SAB,
   AGEDA BOUT 69 YEARS,
   R/AT GAFFAR KHAN MOHALLA,
   CHINTHAMANI CIRCLE,
   SRINIVASAPURA TOWN-563135.
   KOLAR DISTRICT.

3. SHRI. MOHAMAD ILIYAS,
   S/O LATE ABDUL RASOOL SAB,
   AGED A BOUT 73 YEARS,
   R/AT GAFFAR KHAN MOHALLA,
   CHINTHAMANI CIRCLE,
   SRINIVASAPURA TOWN-563135,
   KOLAR DISTRICT.

4. SHRI. IMTHIYAZ AHAMED,
   S/O LATE ABDUL RASOOL SAB,
   AGED ABOUT 61 YEARS,
   R/AT GAFFAR KHAN MOHALLA,
   CHINTHAMANI CIRCLE,
   SRINIVASAPURA TOWN-563135.
   KOLAR DISTRICT.
(NOTE: P2 & P3 SENIOR CITIZEN BENEFIT NOT CLAIMED)

                                        ...PETITIONERS
(BY SRI. T M VENKATA REDDY, ADVOCATE)
                                 2

AND:

SHRI. ABDUL KHALIQ ANSARI
S/O LATE ABDUL HAMEED ANSARI,
AGED ABOUT 63 YEARS,
R/A GAFFAR KHAN MOHALLA,
NEAR TO ALI-AMEEN HIGH SCHOOL,
SRINIVASAPURA TOWN-563135
KOLAR DISTRICT
                                                 ... RESPONDENT
(BY SRI. G MANIVANNAN, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
ORDER DATED 06.06.2016 ON I.A.NO.23 IN O.S.NO.313/2008
PASSED BY THE I ADDITIONAL SENIOR CIVIL JUDGE AT
KOLAR AT ANNX-H BY ALLOWING THE ABOVE WRIT
PETITION AND DISMISS THE SAID APPLICATION FILED BY
THE RESPONDENT/PLAINTIFF VIDE ANNX-F.

    THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY THROUGH PHYSICAL
HEARING, THE COURT MADE THE FOLLOWING:-

                            ORDER

The suit in O.S.No.313/2008 is for a decree of

specific performance; it has been founded on the

agreement to sell dated 05.02.2007; it is filed by the

respondent-plaintiff and the petitioners happen to be the

defendant; suit is being resisted by filing the Written

Statement; after trial of the proceedings an application was

moved by the plaintiff's side to refer the subject agreement

for the forensic examination; the same having been

favoured by the learned trial judge vide order dated

06.06.2016 a copy whereof is at Annexure-H, the

petitioners are complaining before the Writ Court.

2. After service of notice, the respondent-plaintiff

having entered appearance through his counsel

vehemently opposes the writ petition arguing in support of

the impugned order and the reasons on which it has been

structured. He contends that time & again it is reiterated

by this court that it is not prudent for the Courts to

undertake examination of the documents for ascertaining

authenticity of disputed signatures or the scripts without

the aid of expert opinion, so contending he seeks dismissal

of writ petition.

3. Having heard the learned counsel for the

parties and having perused the petition papers, this Court

declines to grant indulgence in the matter for the following

reasons:

a) as mentioned above, the suit is one for specific

performance; the value of the property comprised in the

agreement on which the suit is founded appears to be

considerable; the petitioners being the defendants, at para

2 of their Written Statement have denied the execution of

the agreement itself and the receipt of the consideration

amount; that being the position, the learned judge in his

accumulated wisdom has directed forensic examination of

the subject document; that cannot be faltered, to say the

least.

b) It has been the consistent view of several high

Courts in the Country and more particularly this Court

that whenever the signature is denied, ordinarily the

Courts would not undertake examination of the same sans

expert opinion; although it is stated that Court is expert of

the experts, still it has some inherent constraints in

matters like this as held by the Apex Court in State of

Maharastra Vs. Sukhdeo Singh and Anr., 1992 SCR (3)

480.

c) This apart no prejudice will be caused to

petitioner by the exercise undertaken by the Forensic

Expert; challenge by the petitioners is preposterous, since

Report of the expert may come out in their favour, a well; if

it goes against their interest, they may file their objections

therefor and the court below shall consider the same

objectively before acting upon the report.

In the above circumstances, this petition fails; the

learned judge of the Court below shall ensure immediate

examination of the documents in question at the hands of

the forensic expert by prescribing the time limit for

accomplishment.

The respondent-plaintiff shall deposit Rs.5,000/- in

the Court below as the tentative costs of forensic

examination within a period of three weeks failing which

the impugned order stands voided. The I Additional

Senior Civil Judge at Kolar, shall take appropriate steps for

receiving the said deposit in accordance with law.

The Forensic laboratory is directed to accomplish the

forensic examination of the subject document and submit

its report to the court below within a period of two months

failing which the in-charge officer of the laboratory shall be

present before this Court to offer explanation for the delay

brooked.

The learned judge of the court below is requested to

try & dispose off the suit within a period of three months

from the date the forensic report is received.

Registry shall send a copy of this judgment to the

Court below forthwith.

No costs.

Sd/-

JUDGE Bsv