Z.M. Kaladgi and Others vs Krishnappa B.K. and Others

Rathnakala, J.—This petition is filed seeking a writ in the nature of certiorari to quash the order dated 29.06.2015 passed on I.A. No. 15, by the XI Additional City Civil Court, Bangalore (CCH-8) in O.S. No. 1989/2008 vide Annexure ''A'', whereby the application filed by the petitioners/plaintiffs came to be rejected. I.A. No. 15 was filed under the provisions of Order 26 Rule 10-A of CPC r/w. Section 45 of Indian Evidence Act to refer the disputed signatures of late B.K. Krishnappa and also the witness/Udaya Kumar who is none other than the son of deceased B.K. Krishnappa. The plaintiffs filed a suit for specific performance alleging that the deceased B.K. Krishnappa executed unregistered sale deed in respect of the suit schedule property in favour of B.M. Sangli/husband of first plaintiff and father of the co-plaintiffs and had received the sale consideration. B.K. Krishnappa had instituted a suit in O.S. No. 9696/2007 dated 15.12.2007, before the Civil Court against the second plaintiff for permanent injunction, in respect of the very same property which is the subject matter in O.S. No. 1989/2008 filed by petitioners/plaintiffs seeking specific performance of contract to enforce the sale agreement. Both matters were taken up together.

It is the submission at the Bar that O.S. No. 9696/2007 has reached the stage of defendants'' arguments. In O.S. No. 1989/2008 argument is yet to commence. At this stage, the plaintiffs/writ petitioners have filed the above application.

Sri Shivarudra, learned Counsel for the petitioners submits that the petitioners are restricting their prayer to the extent of challenging the disputed signature of B.K. Udaya Kumar on the sale agreement.

It is a fact that the sale agreement which is in dispute between the parties is marked in evidence as Ex. P. 1, signatures of one Udaya Kumar as the witness is found on Ex. P. 1. He was examined before the Court as plaintiffs'' witness. He had categorically disputed his signature on Ex. P. 1. Now, it is the submission of learned Counsel for the petitioners that to establish the veracity of the evidence adduced by Udaya Kumar and also for comparison of his disputed signature on Ex. P. 1 with that of his admitted signature on the vakalath he has filed in the Court after he was brought on record as the legal heir of B.K. Krishnappa, is necessary. By keeping all the contentions open, there is no impediment for the Court to subject the disputed signature of Udaya Kumar with his admitted signature in the vakalath to any Government authorized handwriting expert.

Sri Shivananda Meti, learned Counsel for the respondents submits that the respondents filed suit in O.S. No. 9696/2007 and the same is pending and further exercise of comparison of signatures by the experts would further delay the proceedings and the Court is not disabled for comparing the admitted signature and the disputed signature, as per the jurisdiction vested with it under Section 45 of the Indian Evidence Act and the plaintiffs had sought for sending the signatures for examination for a private handwriting expert but they have no faith in private hand writing expert. In the light of the submissions made by learned Counsel for bodi parties, the following order is passed:

The petition is allowed.

The impugned order dated 29.06.2015 passed on I.A. No. 15, by the XI Additional City Civil Court, Bangalore (CCH-8) in O.S. No. 1989/2008, insofar as it relates to rejecting the prayer of the writ petitioners regarding sending the signature of B.K. Udaya Kumar to handwriting expert is set aside.

The Court below is directed to send the admitted signature of B.K. Udaya Kumar in Ex. P. 16(a)/vakalath with the disputed signatures at Ex. R1(f) and Ex. P. 1(b) on Ex. P. 1/alleged agreement dated 13.08.1992, to any Government authorized handwriting expert for comparison.

The petitioners shall take all necessary steps for sending the documents for comparison and pay the required expenses and costs.

However, both cases filed by the writ petitioners and respondents shall be disposed of as expeditiously as possible within an outer limit of four months from the date of receipt of certified copy of this order.

Learned Counsel for the respondents is permitted to file vakalath within two weeks from today.