Smt. Lingamma vs Sri. Boregowda B
2022 Latest Caselaw 3111 Kant

                                                WP No.9375/2017


                                   1

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                           BEFORE

         THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

        WRIT PETITION NO.9375 OF 2017 (GM-CPC)

BETWEEN:

1. SMT. LINGAMMA
W/O LATE KENCHEGOWDA
AGED ABOUT 59 YEARS

2. K. SHIVAKUMARA
S/O LATE KENCHEGOWDA
AGED ABOUT 42 YEARS

3. K. RAMAKRISHNA
S/O LATE KENCHEGOWDA
AGED ABOUT 39 YEARS

4. K. RADHA
D/O LATE KENCHEGOWDA
AGED ABOUT 35 YEARS

ALL ARE R/AT A.V. HALLI VILLAGE,
V. PURA HOBLI, CHANNAPATNA,
RAMANAGARA DISTRICT.

                                             ...PETITIONERS

(BY SRI S.RAJASHEKAR, ADVOCATE)
                                               WP No.9375/2017


                              2

AND:

1. SRI BOREGOWDA. B
S/O LATE BHUJAGEGOWDA
AGED ABOUT 76 YEARS
R/AT NO.75TH MAIN, 1ST CROSS,
SUBBANNA GARDEN,
VIJAYANAGAR, BENGALURU 560 040.
(SINCE DECEASED REPRESENTED BY HIS LRS)

1A. SMT JAYAMMA
W/O LATE B.BOREGOWDA
AGED ABOUT 75 YEARS

1B. SMT. B SOWBHAGYA LAKSHMI
W/O LATE DR.NAGARAJU,
AGED ABOUT 52 YEARS,
R/AT NO.688, BANNI MANTAP, B LAYOUT,
SRI SHIVARATHRISHWARA NAGARA,
MYSORE -570 015.

1C. SRI B RAVIKUMAR
S/O LATE B.BOREGOWDA
AGED ABOUT 49 YEARS,

1D. SMT.B. KUSUMA
D/O LATE B.BOREGOWDA
AGED ABOUT 47 YEARS,

RESPONDENTS NO.1(A), 1(C) & 1(D) ARE
R/AT NO.6, NIDHI NILAYA, 1ST CROSS,
7TH MAIN, SUBBANNA GARDEN,
VIJAYANAGAR, BENGALURU-560040.

                                          ...RESPONDENTS

(BY SRI G.A. SRIKANTE GOWDA, ADVOCATE FOR R1(A&B);
R1(C) & R1(D) IS SERVED)
                                                            WP No.9375/2017


                                      3

      THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN
R.A.NO.71/2012 PENDING ON THE FILE OF PRINCIPAL DISTRICT
AND SESSIONS JUDGE, RAMANAGARA AND CALL FOR THE
RECORDS IN O.S.NO.4/2012 ON THE FILE OF HON'BLE SENIOR
CIVIL JUDGE AND JMFC CHANNAPATNA AND ETC.,

    THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:

                               ORDER

The petitioners are before this Court seeking for the

following reliefs:

"i. To call for the records in R.A.No.71/2012 pending on the file of Principal District and Sessions Judge, Ramanagara;

ii. To call for the records in O.S.No.04/2012 on the file of Hon'ble Senior Civil Judge and JMFC, Channapatna;

iii. To set aside the order dated 16.07.2016 passed on I.A.No.II filed under Order XXVI Rule 10 of CPC in R.A.No.71/2012 passed by Principal District and Sessions Judge, Ramanagara;

iv. To allow I.A.No.II filed under Order XXVI Rule 10 of CPC filed in R.A.No.71/2012 by appointing Handwriting Expert to compare signatures of first respondent found on Ex.D-3 Pachayathi Parikathu with his other admitted signatures with Exs.D-16, 17, 18, 75 & 76 with a direction to give his opinion as to whether these signatures have been made by one and the same person i.e., first WP No.9375/2017

respondent (plaintiff in O.S.No.04/2012 on the file of Hon'ble Senior Civil Judge and JMFC, Channapatna);

v. To pass such other order or Writ as this Hon'ble Court deems fit to grant under the facts and circumstances of the case;

vi. For costs of this writ petition in the interest of justice."

2. Though various reliefs have been sought for

essentially what has been challenged is order dated

16.07.2016 passed on I.A.No.2 filed under Order XXVI Rule 10

of CPC in R.A.No.71/2012. The said application in I.A.No.2

was filed for the purpose of referring the signatures found on a

partition deed which had been marked in evidence before the

Trial Court to an Handwriting Expert to compare the signature

of the respondent No.1 herein who was the plaintiff therein

with the other admitted signatures in Exs.D-16, D-17, D-18,

D-75 and D-76 which has already been produced and marked

in evidence in the said suit. The First Appellate Court rejected

the said application on the ground that the application is

belated. Any such application ought to have been filed before WP No.9375/2017

the Trial Court when the document had been disputed by the

plaintiff and as such, at a belated stage, the filing of the

application was not maintainable. Being aggrieved by the said

order, the petitioners are before this Court.

3. Shri S.Rajashekar, learned counsel for the

petitioners would submit that there are serious disputes as

regards the signature found on the unregistered Memorandum

of Partition dated 01.01.1985. The said Memorandum of

Partition goes to the root of the matter. If the signatures are

not verified by an Handwriting Expert, the interest of justice

would suffer. Though the application may be belated, the

application ought to have been allowed in the interest of

justice.

4. Shri G.A.Srikante Gowda, learned counsel for

respondent Nos.1(a) and 1(b) submits that it is not only the

question of application being belated, during the cross-

examination of the plaintiff when PW.1 had denied the WP No.9375/2017

existence of the said document, PW.1 had also consented to

the matter being referred to Handwriting Expert, the

petitioners elected not to seek for reference of the document

to the Handwriting Expert. Having so elected, it is only upon

the petitioners suffering an adverse judgment, that in the

appellate stage the application for referring to Handwriting

Expert under Order XXVI Rule 10 of CPC has been filed. This,

he submits was not permissible since the election by the

petitioners had occurred at the Trial Court stage.

5. Notice to respondent Nos.1(c) and (d) though

served, none has entered appearance.

6. Heard Shri S. Rajashekar, learned counsel for the

petitioners and Shri G.A.Srikante Gowda, learned counsel for

respondent Nos.1(a) and 1(b).

7. The short question that would arise for

consideration in this matter is, whether the party to a litigation

if were to elect to accept the document and or not seek for WP No.9375/2017

reference of a disputed document to an Handwriting Expert

where the signatures are denied could the same be raised at

an appellate stage?

     8.    In   the    present    case     on    hand,   the   suit   in

O.S.No.4/2012         which      was       earlier   numbered         as

O.S.No.327/2009 had been filed by the plaintiff for declaration

that he was the absolute owner of the suit schedule property

and for permanent injunction restraining the defendant from

interfering with his possession.

9. The suit was based on an unregistered Panchayathi

Parikathu dated 17.08.1983. The defendant upon entering

appearance filed written statement contending that there was

another unregistered partition deed between the parties which

overrides the earlier partition deed executed on 01.01.1985

and therefore, the claim of the plaintiff is liable to be rejected

and the claim is to be decided in accordance with the partition

deed dated 01.01.1985.

WP No.9375/2017

10. When the plaintiff examined himself as PW.1,

during the course of examination, PW.1 denied the existence

of partition deed dated 01.01.1985 as also denied his

signatures on the said document. When asked if PW.1 was

agreeable for the matter to be referred to an Handwriting

Expert, PW.1 replied in the affirmative. However, thereafter

no application was filed by the defendant seeking for reference

of the document for examination by the Handwriting Expert.

In that background, the parties proceeded to the trial and

upon arguments being concluded, the Trial Court decreed the

suit. While doing so, the Trial Court took it upon itself to

examine the disputed document being the partition deed dated

01.01.1985 and came to a conclusion that the signatures

found on the partition deed dated 01.01.1985 were not similar

let alone identical to the admitted documents namely Exs.D-3

and D-17.

11. The Trial Court examined the formation of the

letters and words including the signatures and was of the WP No.9375/2017

opinion that the characters of the signature of the plaintiff

found in the partition deed dated 01.01.1985 were not at all

similar to the signatures of the plaintiff in the admitted

documents namely Exs.D-3 and D-17 and hence, came to a

conclusion that the partition deed dated 01.01.1985 cannot be

believed and proceeded with the matter by referring to the

other document and evidence on record and on that basis

decreed the suit. Aggrieved by the same, R.A.No.71/2012 has

been filed where the aforesaid application for reference of the

disputed document to Handwriting Expert was made.

12. The cross-examination of PW.1 having occurred

way back in the year 2011 is not in dispute. From the date of

the said cross-examination and the answer of PW.1 that he

was ready and willing to refer the matter to an Handwriting

Expert, the defendant did not take any steps and elected to go

on with the matter. Whatever the reason may be for the said

election, it is only upon the defendant failing in the suit and

the suit being decreed, that in the regular appeal filed, the WP No.9375/2017

present application came to be filed on 07.12.2012. In my

considered opinion, any such application for reference of the

matter to an expert, more particularly an Handwriting Expert,

was required to be made immediately upon a dispute which

had been raised in relation to that particular document.

13. In the present case, the same is compounded by

the fact that PW.1 in his cross-examination has categorically

stated that he was agreeable for the said document to be

referred to an Handwriting Expert. When such was the

situation, the petitioner who was the defendant therein was

put to election as to whether to go on with the matter as such

or seek for reference to an Handwriting Expert. The petitioner

chose to go on with the matter without such reference.

14. As observed above, it is only upon the defendant

failing in defending the suit, that in the first appeal, the

application was filed. This in my considered opinion could not

have been done at the first appellate stage since the election WP No.9375/2017

having already been made in the Trial Court by not seeking for

such reference.

15. Be that as it may, having gone through the

judgment of the Trial Court, the Trial Court has sought to

conduct examination of the document as regards the

formation of characters and words and by ocular evidence

determined that the signatures in the unregistered partition

deed relied upon by the defendant did not match with the

admitted document at Exs.D-3 and D-17. It is not that the

Trial Court came to conclusion that exfacie the signature

appears to be different but the Trial Court went into the very

formation of the alphabets and characters which in my

considered opinion could not have been done by the Trial

Court in terms of Section 73 of the Indian Evidence Act.

16. In view thereof, I am of the considered opinion that

interest of justice would be served if the First Appellate Court

after hearing the arguments advanced by both the parties, in WP No.9375/2017

the event of coming to a conclusion that there is a

requirement for reference of the disputed document to an

Handwriting Expert, the First Appellate Court would be free to

seek for opinion of such Handwriting Expert and then decide

the matter uninfluenced by any observations made herein or

by the Trial Court in the impugned judgment.

17. With the above observations, the petition stands

dismissed. Considering that the appeal is of the year 2012,

the First Appellate Court is directed to dispose of the appeal as

expeditiously as possible.

18. In view of disposal of the above petition, all

pending I.As. stand disposed of and any interim orders stand

discharged.

Sd/-

JUDGE

CA