AI Structured Summary
Not yet generated for this judgment
Judgment
B.S. Patil, J.—In this writ petition, petitioner is challenging the order passed by the Trial Court on I.A. No. 8 filed by the defendants under Order 26 Rules 9 and 10 CPC. read with Section 45 of the Evidence Act.
By the impugned order, the Trial Court has appointed a hand writing expert as Court Commissioner to ascertain the signatures of defendants in the disputed agreement dated 22.05.2008 with the help of the admitted signatures of the defendants.
The plaintiff petitioner herein has instituted a suit in OS No. 11/09 for specific performance of the agreement dated 22.05.2008. Under the said agreement, the first defendant is alleged to have agreed to sell standing trees in the lands along with the second defendant for themselves and the first defendant as a General Power of Attorney holder of Annamalai Estate.
The defendants have filed the written statement contending that the assertions made in the plaint regarding the execution of the agreement are totally false, It is contended that the agreement dated 22.05.2008 is forged one and it is also alleged in paragraph 4 of the written statement that the plaintiffs have played foul game to make believe that the transaction or contract has been made between the parties by producing forged documents. They have denied the assertion that the sale consideration was fixed at Rs. 10,00,000/- and that the same was paid to the defendants as false.
The plaintiffs along with plaint filed an application under Order 39 Rules 1 and 2 seeking temporary injunction to restrain the defendants from cutting or removing the trees. The defendants filed their objections.
After filing written statement and objections, defendants have filed application - I.A. No. 8 seeking appointment of handwriting expert for comparison of signatures found on the agreement dated 22.05.2008 so as to ascertain whether the said signatures match with that of the admitted signatures of the defendants. This application was resisted by the plaintiff. The trial court has allowed the application and it has held that as the defendants specifically denied the execution of agreement dated 22.05.2008 and also their signatures on the agreement, the disputed documents were required to be referred to handwriting expert. It is also held that no harm or injury will be caused to the plaintiff and that such a course will be helpful for adjudication of the rights of the parties and hence exercising its discretion, the trial court passed the impugned order. Aggrieved by this, the present writ petition is filed.
Learned Counsel for the petitioner contends by drawing the attention of the court to the decision of this Court in the case of Miss Renuka Vs. Sri Tammanna Battal and Others, that as the evidence has not commenced, the Trial court was not right and justified in appointing the court commissioner for verification of the genuineness of the signatures He submits that after recording the evidence if the court finds any ambiguity, it could refer to the opinion of handwriting expert Sri Prabhakar, learned Counsel for the petitioner, further submits that it is the burden of the plaintiff to establish that such an agreement was, in fact executed by the defendants and hence the court below ought not to have allowed the application,
Learned Counsel for the respondents placing reliance on the judgment of the Division Bench of the High Court of Andhra Pradesh in the case of Janachaitanya Housing Ltd. Vs. Divya Financiers, submits that no time limit could be fixed for filing application u/s 45 of the Evidence Act for sending the disputed signature or writings to handwriting expert for comparison and opinion and the same has to be left to the discretion of the Court to be exercised baaed on the exigencies of the cases and depending upon the facts and circumstances of the case.
Having heard the learned Counsel for both parties and on careful personal of the material on record, I find that the court below has exercised its discretion to refer the matter for the opinion of handwriting expert so as to ascertain the genuineness of signatures found on the suit agreement. The court below has been persuaded to take recourse to such a method having due regard to the contentious issue in the suit, which revolves on the genuineness of the suit documents. It is also not disputed that the application filed under Order 39 Rules 1 and 2 praying for Interim Order of temporary injunction from cutting and removal of standing trees was pending when the defendants came up with this application asserting that signatures found were not their signature. In the facts and circumstances, I do not find any error of jurisdiction or error apparent on the face of the record in the order passed by the court below so as to warrant interference in exercise of the writ jurisdiction. Judgment relied upon by the learned Counsel for the petitioner in Miss Renuka Vs. Sri Tammanna Battal and Others, is not applicable to the present case, as in the facts and circumstances of the said case, the court below had allowed the application appointing an expert commissioner to conduct the DNA test by obtaining blood samples of plaintiff, defendant No. 4 and his wife. In such circumstances this Court taking exception to the very course adopted by the Trial Court held that after completion of the evidence on both sides if it found any ambiguity, the court could appoint a commissioner for clarification.
In the instant case, the facts and circumstances are totally different and the course adopted by the trial court cannot be termed as illegal or without jurisdiction and hence, I do not find any merit in this writ petition and the same is therefore dismissed.