Kerala High Court
M.P.Suhara vs C.Suhara on 4 January, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
OP(C) NO. 2174 OF 2023
ORDER DATED 26.09.2023 IN IA 4/2023 IN OS 98/2019 OF MUNSIFF COURT,
PAYYANNUR
PETITIONER/PETITIONER/PLAINTIFF:
M.P.SUHARA
AGED 64 YEARS, WIFE OF ABDUL FATHAH,
MUNDAYATTU PURAYIL HOUSE, CHERUTHAZHAM AMSOM DESOM,
P.O.MANDUR, PAYYANNUR TALUK, KANNUR DISTRICT, PIN - 670501
BY ADVS.
C.MURALIKRISHNAN (PAYYANUR)
ABRAHAM GEORGE JACOB
P.I.RAHEENA
SHAHNA
RESPONDENT/RESPONDENT/DEFENDANT:
C.SUHARA
AGED 52 YEARS, WIFE OF MUSTHAFA.M, CHENGA HOUSE,
KOROM AMSOM DESOM, THOTTAM KADAVU, PO.KANAYI, PAYYANNUR
TALUK,KANNUR DISTRICT, PIN - 670307
BY ADVS.
K B ARUNKUMAR
POOJA K.S.(K/000244/2021)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C.) No.2174 of 2023
2
C.JAYACHANDRAN, J.
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O.P.(C.) No.2174 of 2023
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Dated this the 04th day of January, 2024
JUDGMENT
The plaintiff in O.S. No.98/2019 of the Munsiff
Court, Payyannur is the petitioner herein. He is
aggrieved by Ext.P6 order, which refused an application
to send the disputed agreement for opinion of an expert
under Section 45 of the Evidence Act. The application
was dismissed essentially for the reason that the same
was preferred after commencement of the trial and
when the matter was posted for further evidence,
pursuant to examination of the plaintiff and one of the
attesting witness (PW2).
2. Heard the learned counsel for the petitioner
and the learned counsel for the respondent.
3. Learned counsel for the respondent seriously
opposed the relief sought for in this Original Petition on
the premise that the petitioner is trying to fish
evidence, after his attempt to prove the agreement
through PW2 miserably failed. PW2, an attesting
witness to Ext.P1 agreement (based upon which the
suit for money rests) categorically deposed that the
defendant has subscribed his hands to a blank stamp
paper. He also stated that he has not seen the
defendant signing Ext.P1 agreement. It was
emphatically pointed out by the learned counsel for the
respondent that the signature contained in Ext.P1 was
denied as early at the time of filing the written
statement, pursuant to which, the plaintiff failed to take
any steps under Section 45 of the Evidence Act. In this
very belated stage, permitting such a course may not
be in the interest of justice, is the submission made by
the learned counsel for the respondent.
4. Having heard the learned counsel appearing
for the parties, this Court is of the opinion that the
plaintiff can be afforded an opportunity to prove his
document by taking a course to the remedy under
Section 45 of the Evidence Act. This Court is of the
opinion that the plaintiff cannot be found fault with for
having chosen to prove Ext.P1 agreement through the
attesting witness. It goes with saying that ocular
evidence tendered by an attesting witness as regards
the execution of the document, if reliable, stands at a
far better footing when compared to the evidence
sought to be adduced by taking course to Section 45 of
the Evidence Act. But proof of execution through an
attesting witness cannot be deemed or treated as the
only remedy available to the plaintiff, which course, if
adopted, will give primacy to the opinion of the
attesting witness. The law cannot be that, once the
attesting witness gives a version, all and sundry are
bound by it. It is only upon exhausting a better remedy,
that the plaintiff was compelled and constrained to avail
a lesser remedy by way of Section 45. In the peculiar
facts and circumstances, the delay cannot stand in the
way of availing the remedy under Section 45 of the
Evidence Act. In the circumstances, Ext.P6 order cannot
be sustained; the same is set aside.
5. To save the time for disposal of the suit, in
which part of evidence had been let in, this Court is of
the opinion that the disputed document need not be
send to the Forensic Science Laboratory,
Thiruvananthapuram, which may entail considerable
delay. Instead, it will be open for the parties to chose a
private expert, for which purpose, the petitioner will
submit a list of three private experts before the court
below. It will be open for the respondent as well to file a
list of private experts, in case the respondent would
choose to do so. The court below will appoint an
appropriate expert for the purpose of comparison of the
disputed document under Section 45 of the Evidence
Act. Once the report of the expert is made available,
the trial will be proceeded from the state where it is
stopped. Ext.P4 application is allowed as indicated
above. Needless to say that the trial will stand stayed
until the expert's report/opinion is made available. It is
clarified that the expenses for the expert will
necessarily be borne by the petitioner/plaintiff.
The original petition is disposed of as above.
Sd/-
C. JAYACHANDRAN
JUDGE
SKP/04-01
APPENDIX OF OP(C) 2174/2023
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 27/09/2017
EXECUTED BY RESPONDENT IN FAVOUR OF PETITIONER
EXHIBIT P2 TRUE COPY OF THE PLAINT DATED 09/05/2019 FILED
BY THE PETITIONER IN OS NO.98/2019 ON THE FILES
THE COURT OF MUNSIFF PAYYANUR
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED
18/09/2019 FILED BY THE RESPONDENT IN OS
NO.98/2019 ON THE FILES THE COURT OF MUNSIFF
PAYYANUR
EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT AND PETITION DATED
08/08/2023 IN IA.NO. 04/2023 IN OS.NO.98/2019
FILED BY PETITIONER ON THE FILES THE COURT OF
MUNSIFF PAYYANUR
EXHIBIT P5 TRUE COPY OF THE COUNTER DATED 11/08/2013 FILED
BY RESPONDENT IN IA. NO 04/2023
EXHIBIT P6 TRUE COPY OF THE ORDER DATED.26/09/2023 OF
MUNSIFF COURT, PAYYANUR IN IA.NO.04/2023 IN
RESPONDENT'S EXHIBITS:NIL
TRUE COPY
P.A. TO JUDGE
