Karnataka High Court
Sri C Rajanna vs Sharadamma on 21 July, 2023
Bench: Ravi V Hosmani
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WP No. 13039 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO. 13039 OF 2023 (GM-CPC)
BETWEEN:
SRI. C. RAJANNA,
S/O LATE CHIKKA CHANNARAYAPPA,
AGED ABOUT 61 YEARS,
R/AT BEGUR VILLAGE, BEGUR HOBLI,
BANGALORE-560 009.
...PETITIONER
[BY SRI. JOSE SEBASTIN, ADVOCATE (PH)]
AND:
1. SHARADAMMA,
S/O LATE C.V.L SHASTRY,
MAJOR, SKY TOP PVT., LTD.,
NO. 175, 6TH CROSS, GANDHINAGAR
BANGALORE- 560 009.
2. NAGANDRA PRASAD,
S/O LATE C.V.L. SHASTRY,
MAJOR, SKY TOP PVT. LTD.,
NO.175, 6TH CROSS, GANDHINAGAR,
BANGALORE - 560 009.
Digitally signed by
GEETHAKUMARI
PARLATTAYA S 3. SUBRAMANI,
Location: High S/O LATE C.V.L. SHASTRY,
Court of Karnataka MAJOR, SKY TOP PVT., LTD.,
NO.175, 6TH CROSS, GANDHINAGAR
BANGALORE- 560 009.
4. SRI. ANANTHARAMAIAH,
FATHERS NAME NOT KNOWN
MAJOR, EX.EMPLOYEE OF MICO,
R/AT 11TH CROSS, WILSON GARDEN,
BANGALORE- 560 030.
5. MATHEWS,
FATHERS NAME NOT KNOWN
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WP No. 13039 of 2023
MAJOR, EX.EMPLOYEE OF MICO,
R/AT 11TH CROSS, WILSON GARDEN,
BANGALORE- 560 030.
6. SRI. H. B. SHIVAKUMARAIAH,
S/O BASAVANNA,
AGED ABOUT 63 YEARS,
R/AT NO. 39/8, 6TH CROSS,
1ST MAIN, BHARATHI LAYOUT,
BANGALORE - 560 029.
7. B. L. JAYACAHDRA,
S/O LATE LAKSHMIKANT RAO,
AGED ABOUT 59 YEARS,
R/AT NO. 22/1, HOSUR ROAD CROSS,
BEHIND VINAYAKA TEMPLE,
MADIVALA BANGALORE- 560 068.
8. S. RAJANNA
S/O LATE SHAMANNA,
AGED ABOUT 58 YEARS,
R/AT BEGUR VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH.
9. SR P. DEVARAJ,
S/O LATE PILLAPPA,
AGED ABOUT 58 YEARS,
R/AT BEGUR VILLAGE,
BEGUR HOBLI,
BANGALORE SOUTH.
...RESPONDENTS
[BY SRI. SHYAM KOUNDINYA A.S., ADV., FOR C/R7 (PH)]
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUNGED
ORDER OF DISMISSAL PASSED ON 01/06/2023, ON I.A.1/2023,
IA2/2023 AND IA.3/2023 IN O.S.NO.26932/2009 ON THE FILE OF
THE LXXIV OF ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYOHALL
UNIT, BANGALORE, UNDER THE ORIGINAL OF ANNEXURE-P AND
ETC.,
THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
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WP No. 13039 of 2023
ORDER
Challenging order dated 01.06.2023 passed by LXXIV
Addl. City Civil Judge, Mayo Hall Unit, Bengaluru City, on
I.A.no.1/2023, I.A.no.2/2023 and I.A.no.3/2023 in
O.S.no.26932/2009, this writ petition is filed.
2. Sri. Jose Sabastian, learned counsel for petitioner
submitted that petitioner was plaintiff no.1 in
O.S.no.26932/2009 filed for declaration that agreement of sale
dated 18.08.1988, power of attorney dated 06.01.1989
notarised on 31.03.1990 as fraudulent and concocted
documents and same would not take away rights of plaintiff
over schedule property nor confer any right in favour of third
parties and for permanent injunction etc.
3. In said suit, petitioner herein was joined by
respondents no.8 and 9 herein as plaintiffs no.2 and 3 and
respondents no.1 to 7 were defendants no.1 to 5. It was
submitted that after framing of issues and conclusion of trial,
plaintiffs filed I.A.no.I/2023 under Section 45 and Section 73 of
Evidence Act r/w Section 151 of CPC for comparison of
signatures to handwriting expert to ascertain truth or otherwise
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about genuineness of respective signatures found on Exs.D.27
and D.28 and to submit report.
4. I.A.no.II/2023 was filed under Order XI Rule 14
read with Section 151 of CPC, for direction to produce
documents referred to and admitted by defendant no.4 from his
custody and possession for referring same to handwriting
expert for comparison of signatures found therein etc.
5. I.A.no.III/2023 was filed under Order XIII Rule 10
read with Section 151 of CPC, for calling entire records in
O.S.no.419/2005 on file of I Additional Civil Judge (Jr.Dn.)
Bengaluru Rural District, Bengaluru, disposed of on 05.09.2008
for comparison of signatures found in plaint with that of
disputed signatures found on Exs.D27 and D28.
6. It was submitted that very case of plaintiff from
inception of suit was that impugned agreement of sale dated
18.08.1988 and power of attorney dated 06.01.1989 were
forged and concocted. To establish same, comparison of
admitted and disputed signatures by handwriting expert was
necessary. Hence, applications were filed.
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7. But, without proper consideration trial Court
rejected same on untenable grounds. It was submitted that
mere delay in filing application or after closure of evidence
would not come in way of trial Court permitting applications
which would further ends of justice.
8. It was submitted that in O.S.no.419/2005 filed by
plaintiff for partition, copies of Exs.D27 and D28 were produced
to establish that plaintiff was already granted share in partition.
As said suit was only for partition, plaintiffs could not seek for
comparison of signatures and it came to be dismissed.
Thereafter, plaintiffs filed present suit assailing said documents.
9. It was submitted that by dismissing applications,
trial Court failed to exercise power conferred on it under Order
XXVI Rule 10-A of CPC, when there was dispute about
signatures on Exs.D27 and D28, especially, when main relief
sought in suit was for declaration that disputed documents
were fraudulent and concocted. It was submitted that even
issues were framed touching upon authenticity of disputed
documents and plaintiff had examined himself and got marked
Exs.P1 to P85 and defendants had examined two witnesses. It
was contended that defendants did not call upon either of
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witnesses to Ex.D28 - agreement of sale or Notary Public
before whom Ex.D27 - GPA was allegedly executed as
witnesses. In view of same, it would be imperative for plaintiff
to file application for comparison of signatures.
10. It was submitted that right to invoke Order XXVI
Rule 10-A of CPC would be at earliest after closure of evidence,
as held in Ms.Renuka Vs. Sri Tammanna and Ors., reported
in ILR 2007 Kar. 3029; P.T.Shylesh and Anr. v/s
Smt.Ambikapathi and Ors., reported in ILR 2009 Kar. 2911
and in Sanjay K Shetty Vs. B. Narayana Shetty, reported in
ILR 2006 Kar. 1080. Learned counsel additionally referred to
M. Ramaiah Vs. Narasimhaiah, reported in AIR 2012 Kar.
171 and in Doddaveeregowda Vs. Basavaraju, reported in
2010 (2) KLJ 175.
11. Relying upon decision of Hon'ble Supreme Court in
case of Chennadi Jalapati Reddy Vs. Baddam Pratapa
Reddy (Dead) by LRs. and Anr., reported in 2019 (14) SCC
220, it was also contended that it was permissible to refer
signatures on plaint/written statement/vakalathnama in earlier
suit for comparison with disputed signatures and therefore,
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rejection of application by trial Court under impugned order
called for interference.
12. On other hand, Shri Shyam Koundinya, learned
counsel for caveator/respondent no.7 supported impugned
order. It was submitted that applications filed at stage of
arguments i.e. at fag end were dilatory and as abuse of process
of Court. It was submitted that plaintiff no.2 herein, who was
one of co-executants of documents under challenge had
admitted executing said documents. Infact judgment and
decree in O.S.no.419/2005, confirmed in R.A.no.17/2009 by
imposing costs of Rs.3,000/- was on this ground and said
finding/judgment had attained finality. It was further submitted
that while passing impugned order, trial Court had assigned
sufficient and cogent reasons and same did not call for
interference.
13. Heard learned counsel and perused writ petition
record.
14. From above, it is not in dispute that present suit is
filed by plaintiff seeking for declaration that agreement of sale
dated 18.08.1988, power of attorney dated 06.01.1989
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notarised on 31.03.1990 as fraudulent and concocted etc., after
dismissal of earlier suit in O.S.no.419/2005 filed for partition.
15. It is also not in dispute that I.As.no.I, II and
III/2023 were filed by plaintiffs at stage of arguments.
Admittedly, Exs.D27 and D28 were relied upon by defendants
in O.S.no.419/2005 wherein plaintiff no.2 examined as PW.1
had admitted to have executed said documents and based on
said admission, suit was dismissed, which was confirmed in
appeal.
16. While plaintiffs contend that since earlier suit was
only for partition, plaintiffs could not challenge said documents
or for referring and applications filed after conclusion of
evidence would be justified especially in view of validity of said
documents was main question in suit.
17. On other hand, defendants contend that plaintiffs
having failed to dispute Exs.D27 and D28 in earlier proceedings
would estopped from denying said documents in present suit.
In any case, since main prayer sought in present suit was for
declaration against said documents and both parties had
already led evidence on their respective stand, attempt to
supplement or supplant evidence on record by recourse to
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Order XXVI Rule 10-A of CPC, would not be justified if not
abuse of process of Court.
18. While passing impugned orders on I.As.no.I, II and
III, trial Court observed that until 2009, there was no challenge
of documents executed in year 1989. It observed that plaintiffs
had filed another suit in O.S.no.907/2005 against MICO Society
for declaration which was pending. It further observed that in
previous proceedings S. Rajanna was plaintiff no.1 and
examined as PW.1 admitted his signature on GPA as well as
agreement of sale. He had also admitted signatures of plaintiffs
no.2 and 3 thereon and based on said admission
O.S.no.419/2005 was dismissed and plaintiffs' challenge of
dismissal rejected in R.A.no.17/2009. Based on above
observations, it concluded that present applications were filed
to drag proceedings.
19. It also observed that, issuance of direction to
produce Powers of Attorney dated 20.04.1993 and 24.01.1994
would not arise as plaintiff had admitted in para 6 of plaint that
said PoAs were already cancelled. It further observed that
judgment and depositions in O.S.no.419/2005 were already
produced and were part of records. And plaintiff no.2 had
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admitted his signatures on agreement of sale and power of
attorney. On above reasons, trial Court rejected applications.
20. Insofar as petitioners' contention that main ground
on which suit was filed was that agreement of sale dated
18.08.1988 and PoA dated 06.01.1989 were forged and
comparison of signature would be imperative does not stand to
reason, as burden to establish said fact would be on plaintiff
and he could not be permitted to take resort to Order XXVI rule
10-A of CPC, as same would undoubtedly be for collection of
evidence.
21. Though, there cannot be second opinion about law
that appropriate stage for invocation of power under Order
XXVI rule 10-A of CPC would only be after conclusion of
evidence, but need for same would arise only if evidence led by
parties remained inconclusive or ambiguous. In instant case,
when present suit is filed for declaration against Exs.D.27 and
28 burden would be upon plaintiff to lead evidence to establish
same, and cannot rely entirely on report of handwriting expert.
As rightly noticed by trial Court, disputed documents were
relied upon by defendants and produced in earlier suit itself. In
fact, plaintiff no.2 herein namely S Rajanna, who was plaintiff
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no.1 in O.S.no.419/2005 had clearly admitted his signature as
well as signature of other plaintiff on disputed documents.
When said admission was basis for dismissal of plaintiffs' suit in
O.S.no.419/2005 and said finding had attained finality with
confirmation in R.A.no.17/2009, same would be binding on
plaintiffs in present suit also. Without availing opportunity of
explaining said contra evidence, simply filing application for
opinion of handwriting expert would be to supplant, if not
supplement evidence, which purpose is deprecated.
22. In view of said position, even though there would
be no dispute with regard to legal position about referring to
signatures on plaint, written statement, deposition and
vakalath etc., for comparison of admitted with disputed
signatures, said ratio would not avail to petitioner in instant
case. Therefore, I do not find any good or sufficient reasons to
interfere with impugned order.
23. Further, fact that applications were filed at fag end
of suit would indeed appear to be dilatory. Hence, writ petition
is dismissed by imposing costs of Rs.10,000/- payable to
defendants within period of two weeks from date of receipt of
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certified copy of this order or from next date of hearing in suit,
whichever is later.
Sd/-
JUDGE
PSG/GRD
