Karnataka High Court
Abdul Razak S/O Ladsab Awate vs Smt. Habibabegum W/O Azizsab Mudnal on 28 October, 2024
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NC: 2024:KHC-D:15750
WP No. 106212 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.106212 OF 2024 (GM-CPC)
BETWEEN:
ABDUL RAZAK S/O. LADSAB AWATE,
AGE: 67 YEARS, OCC: BUSINESS,
R/O: MAHANTANAGAR, KAMALAPUR,
MAIN ROAD, DHARWAD - 580 008.
...PETITIONER
(BY SRI ROHIT S. PATIL, ADVOCATE FOR
SRI SHRIKANT T. PATIL, ADVOCATE)
AND:
1. SMT. HABIBABEGUM W/O. AZIZSAB MUDNAL,
AGE: 69 YEARS, OCC: HOUSEHOLD WORK,
R/O: KONNUR, TQ: MUDDEBIHAL,
DIST: BIJAPUR - 586 208.
2. SHRI ABDULRAHIM S/O. NISSARAHAMED MUNSHI,
Digitally signed AGE: 63 YEARS, OCC: AGRICULTURE/BUSINESS,
by SAROJA
HANGARAKI R/O: GOUDAR ONI, GULAGANJIKOPPA,
Location: High
Court of
DHARWAD - 580 009.
Karnataka
...RESPONDENTS
(BY SRI S.N.BANAKAR, ADVOCATE FOR C/R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
INDIAN CONSTITUTION, PRAYING TO, A WRIT OF CERTIORARI MAY
BE ISSUED TO QUASH THE INTERIM ORDER DATED 21/09/2024
PASSED IN OS NO. 205/2010 ON THE FILE OF PRL. CIVIL JUDGE
AND JMFC, DHARWAD VIDE ANNEXURE-H IN THE ENDS OF JUSTICE.
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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WP No. 106212 of 2024
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
The present writ petition is filed by the plaintiff calling in
question the order dated 21.09.2024 passed in
O.S.No.205/2010 by the Principal Civil Judge and JMFC,
Dharwad1.
2. The fact situation in nutshell leading to the
present writ petition is that the petitioner instituted a suit in
O.S.No.205/2010 for specific performance of contract in respect
of agreement of sale dated 12.11.1996 and for other reliefs.
The respondents, who are arrayed as defendants 1 and 2 in the
suit, entered appearance and contested the same.
3. After completion of the defendants' evidence,
the petitioner/plaintiff filed an application under Order XVI Rule
1 read with Section 151 of the Code of Civil Procedure, 19082
on 05.09.2024 to summon the handwriting expert. The said
application was opposed by the respondents/defendants. The
Trial Court by its order dated 21.09.2024 dismissed the said
application. Being aggrieved, the present writ petition is filed.
Hereinafter referred to as "the Trial Court"
Hereinafter referred to as "CPC"
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4. Heard the learned counsel Sri. Rohit S. Patil,
for the petitioner and the learned counsel Sri. S. N. Banakar,
for the respondents 1 and 2. Perused the writ petition papers.
5. It is forthcoming that the thumb impression in
the agreement of sale (Ex.P11) was sent for opinion of
handwriting expert consequent to which the report was
received by the Trial Court on 27.07.2024. The
plaintiff/petitioner filed his objections to the said report on
29.08.2024. Thereafter the application under Order XVI Rule 1
read with Section 151 of CPC to summon the handwriting
expert was filed on 05.09.2024.
6. The Trial Court, while rejecting the
application, has recorded a finding that the plaintiff has not
assigned any reasons as to why the handwriting expert needs
to be called and that the plaintiff has not taken any specific
contention in the application that there was a lapse in the
procedure adopted by the handwriting expert and that the
plaintiff has taken sufficient opportunity to file objections as
well as to put forth his arguments. The Trial Court has also
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recorded a finding that the plaintiff is dragging on the
proceedings and hence, rejected the application.
7. As has been noticed above, the report of the
handwriting expert was received by the Trial Court on
27.07.2024 and the objections to the same has been filed by
the plaintiff on 29.08.2024. The application under Order XVI
Rule 1 read with Section 151 of CPC has been filed on
05.09.2024. Hence, it cannot be said that there was a delay by
the plaintiff in raising an objection to the report or in filing the
application.
8. Further, the finding by the Trial Court that in
the application, the plaintiff has not taken any contention with
regard to lapse of procedure adopted by the handwriting expert
is also erroneous inasmuch as in the objection dated
29.08.2024 filed by the plaintiff, various grounds have been
taken with regard to the report filed by the handwriting expert.
The handwriting expert having filed his report on the thumb
impression on the agreement of sale (Ex.P11) and the
petitioner/plaintiff having filed his objections to the same, an
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opportunity ought to have been accorded to the plaintiff to
cross-examine the handwriting expert.
9. The learned counsel for the respondent by
vehemently opposing the writ petition contends that the
plaintiff has been dragging on the suit on one pretext or the
other and due to the same, the respondents/defendants have
been put to untold hardship. Reference is made to the order
dated 24.01.2023 passed in W.P.No.102436/2018 wherein this
Court has directed the Trial Court to dispose off the suit as
expeditiously at any rate within six months from 13.02.2023. It
is further contended that the suit having been dismissed for
default was restored pursuant to the said order dated
24.01.2023. It is further contended that consequent to the
order dated 21.09.2024, which is impugned in the present writ
petition, the Trial Court has already concluded the final
arguments in the suit and the matter is posted for judgment on
29.10.2024.
10. The learned counsel for the petitioner/plaintiff
submits that the matter was posted on 23.10.2024 for
arguments and on that date, the petitioner/plaintiff sought for
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time. However, the respondents have argued the matter and
the matter has been posted for judgment.
11. It is relevant to note that there is some laxity
on the part of the petitioner/plaintiff in prosecuting the present
writ petition also and in effectively prosecuting the matter
pursuant to the impugned order dated 21.09.2024. However, it
is necessary to note that the valuable rights of the
petitioner/plaintiff would be affected if an opportunity is not
accorded to cross-examine the handwriting expert. Having
regard to the fact that this Court vide its order dated
24.01.2023 passed in W.P.No.102436/2018 had directed the
matter to be disposed off as expeditiously as possible and a
time limit has also been fixed, the relief sought for in the
present writ petition is required to be granted subject to certain
terms.
12. In view of the aforementioned, the following:
ORDER
i) The writ petition is allowed subject to
petitioner paying cost of Rs.20,000/- to
the respondents 1 and 2/defendants 1
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and 2 on the next date of appearance
before the Trial Court i.e. on 29.10.2024.
ii) The order dated 21.09.2024 dismissing
the application filed by the petitioner-
plaintiff filed under Order XVI Rule 1 read
with Section 151 of CPC in
O.S.No.205/2010 by the Principal Civil
Judge and JMFC, Dharwad is set-aside.
iii) The application dated 05.09.2024 filed by
the petitioner/plaintiff under Order XVI
Rule 1 read with Section 151 of CPC in
O.S.No.205/2010 is allowed.
iv) The Trial Court consequent to
deposit/payment of costs by the
petitioner/plaintiff, shall pass further
orders in accordance with law.
v) In the event the respondents refuse to
receive the cost, the petitioner/plaintiff
shall deposit the same before the Trial
Court on the next date of hearing i.e. on
29.10.2024 without fail.
vi) In the event the petitioner-plaintiff fails
to pay/deposit the cost as ordered above,
he will lose the benefit of this order.
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vii) Needless to state that having regard to
the order passed in
W.P.No.102436/2018, the Trial Court
shall dispose of the suit as expeditiously
as possible, in accordance with law.
SD/-
(C.M. POONACHA)
JUDGE
YAN/CT-ASC
