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Judgment
A.N. Venugopala Gowda, J.—Petitioner is the plaintiff and the respondents are the defendants in O.S. No. 170/2006 on the file of the Civil Judge (Sr. Dn.,) and JMFC at Kadur. Suit has been filed to pass a money decree for realisation of Rs. 3,12,500/- with interest and costs. Written statement having been filed, issues having been raised, trial of the suit has taken place. Plaintiff filed I.A. No. 16 to reopen the case and I.A. No. 17 to issue a commission to a hand-writing expert to compare the admitted signatures and thumb impression with the disputed thumb impression and signatures put on Exs. P1, P2, P8 and give an opinion. Since defendant No. 1 filed statement of objections, upon consideration, the learned Trial Judge finding from the evidence of PW. 1 that earlier there was a loan transaction between the parties and that the signatures of defendant No. 1 was available in the office of the plaintiff, which has not been produced before the Court and that the plaintiff should produce best evidence to succeed in the suit and if the expert''s opinion is sought and a report is received, the same would not be a conclusive proof, opined that the application has been filed at a belated stage to protract the suit and passed a common order dated 21.5.2012 and dismissed both the applications. Assailing the said order, these writ petitions have been filed.
Sri R.C. Nagaraj, learned counsel appearing for the petitioner contended that the applications have been dismissed by the learned Trial Judge on account of a misdirection adopted in the matter and the impugned order being vitiated warrants interference.
Sri R. Gopal, learned counsel appearing for respondent No. 1 on the other hand supported the view taken by the Trial Court and sought dismissal of the writ petitions.
Suit has been instituted to pass a money decree. On account of the written statement filed, issues having been raised, trial of the suit has taken place. After conclusion of the trial, I.A. 16 was filed to reopen the case and permit the plaintiff to file an application under Order 26 Rule 10-A CPC. I.A. 17 was filed by the plaintiff to direct defendant No. 1 to give the thumb impression and signature before the Court and issue a commission to a hand-writing expert to compare the admitted signatures and thumb impression with the thumb impression and the signatures appearing on Exs. P1, P2 and P8 to furnish the opinion. Suit has been filed based on Exs. P1, P2 and P8. 1st defendant has denied having put his signatures and thumb impression on the said documents. It is on account of the said defence, I.A. 17 was filed.
As held in the case of Miss Renuka Vs. Sri Tammanna Battal and Others, a Court Commissioner can be appointed after completion of evidence on both the sides, if it is found that there is any ambiguity in the evidence adduced by the parties. Hence, I.A. 17 cannot be termed as one having filed belatedly. I.A. 16 was filed to reopen the case from the stage of arguments and to consider I.A. 17. In the case of Damara Venkata Murali Krishna Rao Vs. Gurujupalli Satvathamma ( 2008 SAR (Civil) 781), Apex Court has found fault with an identical order passed by the Trial Court which had been affirmed by the High Court i.e., dismissal of an application filed to send the disputed documents for comparison of an expert, after closure of evidence of the parties. The ratio of the said decision squarely applies to the instant case. Hence, there being misdirection adopted by the Trial Court while considering I.As. 16 and 17, the impugned order being irrational and vitiated, is unsustainable.
In the result, the writ petitions are allowed and the impugned order is quashed. I.A. 16 filed in the Trial Court stands allowed. Since I.A. 17 has not been considered in accordance with law, the Trial Court is directed to decide I.A. 17 afresh, keeping in view the ratio of decision in the case of Damara Venkata Murali Krishna Rao (supra) and in accordance with law, within a period of 4 weeks from the next hearing date of the suit.
No costs.