Karnataka High Court
Mrs Devayani Shetty vs Gujarathi Mahajan Association on 30 June, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.6845/2020 (GM-CPC)
BETWEEN:
1. MRS. DEVAYANI SHETTY
D/O SRI. MANI SHETTY
AGED ABOUT 46 YEARS.
2. MRS. NANDINI SHETTY
D/O SRI. MANI SHETTY
AGED ABOUT 42 YEARS.
Digitally signed BOTH ARE R/AT BANDARY HOUSE
by RUPA V MUTHAKKE COMPOUND
Location: High KODIALBAIL, MANGALORE-75.
Court of ...PETITIONERS
karnataka (BY SRI. ANANDARAMA K, ADV.,)
AND:
1. GUJARATHI MAHAJAN ASSOCIATION
REGISTERED SOCIETY
MANGALORE
REPRESENTED BY ITS PRESIDENT
HARUBHAI M. BALDEV
R/AT. BHOJA RAO LANE
ALAKE, MANGALORE-575002.
2. SRI. BIPIN KUMAR M. RUPANI
S/O MANILAL B. RUPANI
AGED ABOUT 78 YEARS
PAST PRESIDENT OF RESPONDENT NO.1
R/AT. GOPALAKRISHNA TEMPLE ROAD
MANGALORE-575001.
...RESPONDENTS
(BY SRI. SANATH KUMAR SHETTY, ADV., FOR R1 & R2)
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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN
O.S.NO.111/2011 PENDING ON THE FILE OF THE COURT OF I
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU. ISSUE A
WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING
ORDER DATED 25.02.2020 (ANNEXURE-L) PASSED BY THE COURT
OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU ON
I.A.NO.21 IN O.S.NO.111/2011 AND CONSEQUENTLY DISMISS
I.A.NO.21 FILED IN O.S.NO.111/2011 IN THE INTEREST OF JUSTICE.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
25.06.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THE COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
This petition is filed challenging the order dated
25.02.2020 passed by the I Additional Senior Civil Judge &
CJM, Mangaluru on IA.No.21 filed in OS.No.111/2011.
2. Heard.
3. Sri.Anandarama K., learned counsel appearing for
the petitioners submits that the petitioner filed suit for
declaration that the sale deeds are void, seeking cancellation of
the sale deeds and permanent injunction. It is submitted that
the defendants launched a criminal prosecution against the
petitioners which has resulted in acquittal. It is further
submitted that petitioner No.1 has been examined as PW.1 and
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she was cross examined on several dates by the respondents.
Thereafter, an affidavit evidence of one Neelesh D. Singala was
filed. The said witness, who is shown as an Education
Committee Chairman & Legal Officer of respondent No.1-
Association, is neither the president nor the secretary of the
Association and he was examined as DW.1 and the petitioners
cross examined him at length. Thereafter, the matter was
posted for further evidence of defendants. The defendants,
without adducing the evidence of respondent No.2, who was
the former president of the respondent No.1-Association, filed
an application seeking issuance of commission for expert
opinion on the documents mentioned in the application. It is
also submitted that the trial Court ignoring the objections filed
by the petitioners, proceeded to allow the application
prematurely as there is no evidence on record to prove issue
Nos.3 and 4. It is contended that the respondent filing an
application is an attempt to collect evidence by the respondent
which is impermissible. The trial Court has failed to take note
of the fact that the burden is on the defendant No.1 to prove
that the alleged sale deeds have been executed by the
petitioners in its favour after receiving the said considerations
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and without discharging the said primary burden by adducing
the independent evidence, an application filed for expert
opinion is impermissible. It is further contended that the
application is filed only to overcome the finding of the criminal
Court wherein, the opinion of the same expert has been
disbelieved by the Trial Court in the criminal proceedings. In
support of his contentions, he places reliance on the decision of
the Gauhati High Court in the case of RAJIB BAROOAH V.
PURNIMATI PLANTATION (P.) LTD.1 Hence, he seeks to
allow the petition by setting aside the impugned order and by
rejecting the application of the respondent.
4. Per contra, Sri.Sanath Kumar Shetty, learned
counsel appearing for respondents supports the impugned
order of the trial Court and submits that the respondents have
adduced the evidence of DW.1 and the suit being for
declaration that two sale deeds are null and void, it is very
much necessary to find out the signatures and thumb
impressions of the parties on the documents. Hence, they are
sought to be sent for expert's opinion for complete adjudication
1
(2018) 2 GAUHATI LAW REPORTS 204
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of the dispute between the parties. The signatures and thumb
impressions found in the sale deeds are required to be
compared with the admitted documents which are marked in
the criminal proceedings to find out the truth with regard to the
execution of the documents in question. Hence, he seeks to
dismiss the petition.
5. I have heard the arguments of the learned counsel
for the petitioners, the learned counsel for the respondents and
meticulously perused the material available on record. I have
given my anxious to the submissions advanced on both sides.
6. The case of the petitioners is that the petitioners
filed a suit for declaration that two registered sale deeds dated
17.01.1994 in respect of the suit schedule property are
fraudulent and null and void documents and for consequential
prayer of permanent prohibitory injunction restraining the
respondent No.1 from committing any trespass upon the suit
schedule property. The respondents denied the averments
made in the plaint and specifically denied the execution of the
registered settlement deed dated 29.11.2010 by the deceased-
plaintiff No.1 in favour of the present petitioners by contending
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that this document is created to deny the lawful title of the
defendant No.1. The Trial Court framed the issues. The parties
adduced the evidence. The respondent filed an application
under Order XXVI Rule 10A of the Code of Civil Procedure,
1908, read with Section 47 of the Indian Evidence Act, 1871,
seeking prayer to issue summons to the expert and secure the
report on the documents mentioned in the application. The
particulars of the documents referred in the application are 9 in
number including two registered sale deeds dated 17.01.1994,
the registered settlement deed dated 29.11.2010 and other
documents. The contention of the petitioners is that two
registered sale deeds dated 17.01.1994 are documents that are
created by the respondent-Association. The contention of the
respondents is that the deceased-plaintiff No.1 has executed
the two sale deeds in their favour and to defeat their lawful
ownership, the very said deceased-plaintiff No.1 executed the
registered settlement deed dated 29.11.2010 by producing the
old documents before the Sub-Registrar without disclosing the
two registered sale deeds dated 17.01.1994. The respondents
sought the expert's opinion with regard to the signature and
thumb impression of the parties on the two registered sale
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deeds, registered settlement deed and other documents
referred in the application.
7. The records also indicate that the respondents
initiated criminal proceedings against the deceased-plaintiff
No.1 and others and in the said proceedings, the prosecution
secured the opinion of the expert on some of the documents.
Be that as it may, the issue involved in the present suit is with
regard to the execution of the two registered sale deeds dated
17.01.1994 by the deceased-plaintiff No.1 in favour of the
respondent No.1 and the registered settlement deed dated
29.11.2010 and all these documents are marked during the
course of evidence. The signature of the deceased-plaintiff
No.1 and the signatures of the petitioners are found in the
registered settlement deed dated 29.11.2010 and also on the
two registered sale deeds dated 17.01.1994 alleged to have
been executed by the deceased-plaintiff No.1 in favour of the
respondent No.1. The said documents are required to be
ascertained by the expert's view so that the controversy
involved in the suit can be fairly adjudicated. The documents
referred in the application filed by the respondents in I.A.No.21
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are required to be sent to the handwriting expert and collecting
his opinion is absolutely essential to decide the issues framed
by the Trial Court. The expert's opinion on the documents
would aid the Trial Court in arriving to the just conclusion. The
opinion of the expert is one of the piece of evidence along with
other evidence on record so that the Trial Court can record its
finding on the issues.
8. In my considered view, the very object of Order
XXVI Rule 10A of the CPC is to secure clarity on the disputed
facts which would aid the Trial Court to decide the suit
completely. In my considered view, the Trial Court, taking note
of the nature of dispute involved between the parties and
taking note of the evidence on record has rightly exercised its
discretion to allow the application filed by the respondents
seeking for expert's opinion. I do not find any error or
perversity in the finding recorded by the Trial Court calling for
interference in this petition.
9. This Court in the case of SRI SHADAKSHARAPPA
Vs. KUMARI VIJAYALAXMI AND ORS.2 has laid down
2
WP No.201274/22 decided on 24.01.23
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detailed guidelines to be followed by the Trial Courts while
considering the application for appointment of Court
Commissioner. Considering the enunciation of law laid down by
this Court in the case referred supra, I am of the considered
view that the Trial Court was fully justified in allowing the
application.
10. The judgment of the Guwahati High Court relied on
by the learned counsel for the petitioners referred supra has no
application to the facts of the case on hand. In the said case,
the Hon'ble Court has observed that if the appointment of Court
Commissioner is allowed after the trial, it would help the
plaintiff to fill up the lacunae if any, in the evidence of the
plaintiff. However, in the case on hand, the Trial Court, on
judicious application of mind after going through the evidence
on record and taking note of the controversy involved between
the parties, has rightly come to the conclusion that it is a fit
case where the opinion of the expert is necessary.
11. For the aforementioned reasons, I proceed to pass
the following:
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ORDER
The writ petition is devoid of merits and the same is
accordingly dismissed.
The dismissal of the petition would not come in the way
of the petitioner raising the same as the ground in the appeal,
in the event the petitioner fails in the suit.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
ABK/RV
