Karnataka High Court
Manoji vs Yallanni on 23 May, 2024
-1-
NC: 2024:KHC-K:3294
WP No.201245 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.201245 OF 2024 (GM-CPC)
BETWEEN:
MANOJI
S/O JAMPANNA TORAGAL,
AGE: 71 YEARS,
OCC: BUSINESS,
R/O MUKUND NAGAR,
STATION ROAD,
VIJAYAPURA - 586 101.
...PETITIONER
(BY SRI D.P. AMBEKAR, ADVOCATE)
AND:
YALLANNI
Digitally signed by
SACHIN S/O JAMPANNA TORAGAL,
Location: HIGH
COURT OF AGE: 47 YEARS,
KARNATAKA
OCC: BUSINESS,
R/O. SAI PARK,
NEAR DAFFODILS SCHOOL,
VIJAYAPURA - 586 101.
...RESPONDENT
(BY SRI SANGOLI NAGANNA AND SRI R.S.BHAVIKATI,
ADVOCATES)
-2-
NC: 2024:KHC-K:3294
WP No.201245 of 2024
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO A) ISSUE A WRIT,
ORDER OR DIRECTION IN NATURE OF CERTIORARI, QUASHING
ANNEXURE-H, VIZ, THE ORDER DATED 18.04.2024 PASSED BY
THE I ADDITIONAL SENIOR CIVIL JUDGE AND C.J.M.
VIJAYAPURA, DISMISSING I.A.NO.8 IN O.S.NO.484/2022 FILED
BY THE PETITIONER HEREIN UNDER ORDER 26 RULE 10A READ
WITH SECTION 151 OF C.P.C. IN O.S.NO.484/2022 AND
FURTHER ALLOW THE SAID I.A.NO.8 FILED BY THE
PETITIONER HEREIN UNDER ORDER 26 RULE 10A READ WITH
SECTION 151 OF C.P.C., IN SAID O.S.NO.484/2022 WITH
COSTS THROUGHOUT AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
The plaintiff in O.S.No.484/2022 pending
consideration before the I Additional Senior Civil Judge
and CJM, at Vijayapura, has filed this petition challenging
the correctness of an order dated 18.04.2024 by which an
application filed by him under Order XXVI Rule 10A read
with Section 151 of CPC was rejected.
NC: 2024:KHC-K:3294
02. The suit in O.S.No.484/2022 was filed for
specific performance of an agreement of sale dated
13.09.2016 by which the defendant had purportedly
agreed to sell the suit property. The plaintiff claimed that
the total sale consideration that was agreed upon was a
sum of Rs.17,00,000/- and a sum of Rs.14,94,000/- was
paid on 13.09.2016, which is evidenced by a sale
agreement dated 13.09.2016. The defendant had allegedly
agreed to execute a sale deed after receiving the balance
sale consideration. The plaintiff claimed that since the
defendant did not comply with the demand to conclude the
transaction, he was constrained to file a suit for specific
performance.
03. The defendant contested the suit and filed his
written statement. The relevant portion of the written
statement reads as follows:-
NC: 2024:KHC-K:3294
"the defendant requested the plaintiff that this
defendant is in need of money of Rs.15,00,000/-. If the
plaintiff help the defendant, he would repay after taking
bank loan as early as possible. Then the plaintiff even
without looking to the relation told that if the defendant
undertakes and sign the documents to repay the same
after getting bank loan, the plaintiff will arrange the
money. This defendant having kept faith on his brother
agreed and this defendant received an amount of
Rs.14,94,000/-. This defendant repaid the above said
amount of Rs.14,94,000/- to the plaintiff on 30.03.2017
by taking loan in the name of Bank of Siddeshwar
Cooperative Credit Bank, Vijayapura, then the defendant
and his family members requested to return the bond
executed, but the plaintiff did not return and postponing
the same on one or other pretext".
04. Based on the contentions urged in the plaint
and written statement, the Trial Court framed the issues
and set down the case for trial. The defendant was
NC: 2024:KHC-K:3294
examined as DW.1 and in his cross-examination specific
suggestion was put to him which were answered as
follows:-
"¤¦-1 gÀ ªÉÄðgÀĪÀ ¸À» ªÀÄvÀÄÛ ºÉ¨ÉânÖ£À UÀÄgÀÄvÀÄ £À£ÀßzÀÄ
EgÀĪÀÅ¢®è. ¤¦-1PÉÌ £À£Àß ºÉAqÀw ªÀÄvÀÄÛ ªÀÄUÀ ¸ÀºÀ ¸À» ªÀiÁrzÁÝgÉ
JAzÀg¸
É ÀjAiÀÄ®è".
05. Likewise he depose as follows :-
"¸ÁQëUÉ ¤¦-2 £ÀÄß vÉÆÃj¹ CzÀg°
À è PÁtĪÀ ¸À» ªÀÄvÀÄÛ ºÉ¨ÉânÖ£À
UÀÄgÀÄvÀÄ £À£ÀßzÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦-2 zÁR¯ÉAiÀÄ£ÀÄß £Á£ÀÄ
§gÉzÀÄPÉÆnÖ®è CzÀg°
À ègÀĪÀ ¸À» £À£ÀßzÀÄ C®è".
06. When the case was set down for arguments,
the plaintiff filed an application under Order XXVI Rule 10A
read with Section 151 of CPC to refer the documents at
Ex.P.1 and Ex.P.2 to compare the signatures of the
defendant at Ex.P.1(b) and Ex.P.2(b) with his admitted
signatures on the vakalatanama, written statement as well
as the verifying affidavit.
NC: 2024:KHC-K:3294
07. This application was contested by the defendant
who stated as follows:-
"In view of the evidence already available on record
the Hon'ble Court is competent to pronounce its decision
on the basis of available materials on record and on
scrutiny of the disputed signatures along with the admitted
signature available."
08. The Trial Court in terms of its order dated
18.04.2024 rejected the application on the ground that:-
"therefore, if this written statement defense is
considered, the execution of the document is admitted.
Even a issue is framed, whether the agreement of sale is
executed to secure the hand-loan. Whether Ex.P.1 is an
agreement of sale or a document executed to secure the
hand-loan has to be decided only after trial, but, however,
in the written statement itself, there is admission about
the execution of the bond. Therefore, looking into this
aspect in my opinion there is no necessity to send the
document to an expert to compare the signatures."
NC: 2024:KHC-K:3294
09. Being aggrieved by the said order, the plaintiff
has filed this writ petition.
10. The learned counsel for the plaintiff contended
that though the defendant referred to a bond executed by
him acknowledging the receipt of a sum of Rs.14,94,000/-,
but he denied his signatures found on Ex.P.1 and Ex.P.2.
Therefore, it is apparent that it could be that the bond that
was executed by him was not the document which was
marked as Ex.P.1 and Ex.P.2. Thus, he contends that the
Trial Court committed an error in assuming that the
defendant had admitted the execution of the agreement
dated 13.09.2016. He further contends that the defendant
had denied his signatures found on Ex.P.1 and Ex.P.2 in
his cross-examination and therefore it was incumbent
upon the plaintiff to establish that the signatures found on
Ex.P.1 and Ex.P.2 were the signatures of the defendant.
He contends that though the Trial Court is vested with the
power to compare the signatures as per Section 73 of the
Indian Evidence Act, 1872 but the Court has to exercise
NC: 2024:KHC-K:3294
such powers sparingly only when there is no other means
to verify the authenticity of the signatures found on the
document. In this regard he relied upon the judgment of
the Hon'ble Supreme Court in the case of Ajit Savant
Majagavi vs State Of Karnataka, reported in AIR 1997
SC 3255. He further contends that since the execution of
the documents at Ex.P.1 and Ex.P.2 is necessary for
consideration of the suit, the plaintiff ought to be given all
opportunity to establish his case. Therefore, he prays that
the impugned order passed by the Trial Court be set-aside
and the signatures of the defendant on Ex.P.1 and Ex.P.2
be compared with his admitted signatures.
11. Per contra, the learned counsel for the
defendant has filed his statement of objections to this writ
petition wherein he has stated as follows:-
"The petitioner entered into the witness box and filed
his affidavit in lieu of examination-in-chief on 05.02.2024,
the petitioner now sought to be referred the documents for
hand-writing expert for comparison of signature i.e.,
NC: 2024:KHC-K:3294
unregistered agreement of sale said to have been
executed by the respondent herein on 13.09.2016 has
already produced before the Trial Court and marked as
Ex.P.1 and signature of the respondent herein marked as
Ex.P.1(b) and Ex.P.1(c) and the signature of the son of the
respondent marked as Ex.P.1(d) and signature of the wife
of the respondent marked as Ex.P.1(e) in the presence of
both the parties to the suit, at that time no objections
were raised if at all the signature of the respondent herein
disputed then it would have been raised objections at the
time of marking the Ex.P.1. Hence, there is no need to
refer the documents for hand-writing expert".
12. A perusal of the written statement of the
defendant filed before the Trial Court does not clearly
establish that the defendant had admitted the signatures
found on Ex.P.1 and Ex.P.2. On the contrary, the
defendant referred to some bond allegedly executed by
him whereby he acknowledged the receipt of a sum of
Rs.14,94,000/-. When the signatures on Ex.P.1 and Ex.P.2
- 10 -
NC: 2024:KHC-K:3294
were confronted to DW.1, he denied his signatures found
thereon. The Trial Court committed an error of sorts in
construing that the bond which was referred by the
defendant in his written statement was the document
which was marked as Ex.P.1 and Ex.P.2. Similarly, if the
statement of objections filed by the defendant to this writ
petition is seen, the defendant claims that the signatures
of defendant, his son and his wife, were marked without
objections and therefore, it should be construed that the
signatures were admitted.
13. It is therefore evident that the defendant is
playing flaunt by not admitting his signatures on Ex.P.1
and Ex.P.2, but has admitted that he had executed a bond
acknowledging the receipt of Rs.14,94,000/- from the
petitioner. Therefore, the question whether Ex.P.1 was
drawn on the bond referred by the defendant is to be dealt
and answered by the Court. Since, there is no clear
admission on the part of the defendant that the signatures
found on the Ex.P.1 and Ex.P.2 are his signatures, the
Trial Court ought to have exercised its jurisdiction to refer
- 11 -
NC: 2024:KHC-K:3294
the document for hand-writing expert, as exercise of
power under Section 73 of the Indian Evidence Act, has to
be done rarely, particularly when there is no other option
available to the Trial Court. In that view of the matter, the
following order is passed:-
ORDE R
i. The writ petition is allowed.
ii. The impugned order passed by the Trial Court is set-
aside. The application filed by plaintiff under Order
XXVI Rule 10A read with Section 151 of CPC is
allowed.
iii. The Trial Court is directed to refer the signatures of
the defendant found on Ex.P.1 and Ex.P.2 to hand-
writing expert for comparison with the admitted
signatures of the defendant on the written
statement, vakalat and affidavit filed in support of
the written statement.
Sd/-
JUDGE
KJJ
CT:VK
