Karnataka High Court
Sri C Manjunatha vs Sri C V Ashwatha on 1 June, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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WP No. 7402 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO.7402 OF 2023 (GM-CPC)
BETWEEN:
SRI C. MANJUNATHA,
S/O CHANNAVEERAPPA,
AGED ABOUT 56 YEARS,
OCCUPATION: AGRICULTURE,
R/AT NANDAGUDI VILLAGE AND HOBLI,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT -562 114.
...PETITIONER
(BY SRI G.V. NARASIMHA MURTHY, ADVOCATE)
AND:
SRI C.V. ASHWATHA,
S/O VEERABHADRAPPA,
AGED ABOUT 43 YEARS,
R/AT NANDAGUDI VILLAGE AND HOBLI,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT -562 114.
...RESPONDENT
THIS WP IS FILED UNDER ARTICLE 227 OF THE
Digitally signed by
GURURAJ D CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 15.02.2023 VIDE ANNEXURE-E PASSED BY THE HONBLE
Location: High
Court of Karnataka PRINCIPAL CIVIL JUDGE AND JMFC AT HOSAKOTE IN OS.244/2012,
APPLICATION UNDER ORDER 26 RULE 10(2) R/W 151 OF C.P.C R/W
SEC.45 OF EVIDENCE ACT TO APPOINT THE HAND WRITING
FORENSIC SCIENCE LABORATORY, GOVERNMENT FORENSIC
SCIENCE LABORATORY MADIWALA BANGALORE AS COMMISSIONER
FOR INVESTIGATION OF HAND WRITING SIGNATURE OF PLAINTIFF
REPORT THEREON TO THE COURT. THE SUIT SCHEDULE PROPERTY
BEARING SL.NO.224 JANJAR NO.467, PROPERTY NO.409/2
MEASURING EAST TO WEST 25 FEET AND NORTH TO SOUTH 30 FEET
WITH EXISTING RCC BUILDING SITUATED AT NANDAGUDI VILLAGE
AND HOBLI, HOSAKOTE TALUK, BANGALORE.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 7402 of 2023
ORDER
Challenging order dated 15.02.2023 at Annexure-E passed by Principal Civil Judge and JMFC, Hosakote on application filed under Order XXVI Rule 10(a) of CPC, this writ petition is filed.
2. Sri G.V.Narasimha Murthy, learned counsel for petitioner/plaintiff submitted that petitioner had filed suit for specific performance of agreement of sale dated 13.07.2009 in O.S.no.244/2012 against respondent/defendant.
3. In said suit, defendant filed written statement denying plaintiff's averments. Thereafter, matter was contested and evidence was recorded. After recording evidence, defendant filed application under Order XXVI Rule 10(a) of CPC read with Section 45 of Evidence Act, for reference of agreement dated 22.11.2010 for examination by handwriting expert with regard to signature of plaintiff on agreement by Government Forensic Laboratory, Madiwala, Bengaluru.
4. In objections filed to application, plaintiff vehemently denied execution of Ex.D4 - unregistered cancellation of agreement of sale dated 21.11.2010 produced -3- WP No. 7402 of 2023 by defendant. It was further denied that plaintiff had received any amount in pursuance of Ex.D4 in addition to denying his signature on it.
5. On consideration, trial Court proceeded to pass impugned order allowing application. Though, it was submitted that cancellation of agreement was forged as stamp paper for drawing said agreement was obtained on 05.03.2011 even when agreement of cancellation was stated to be executed on 22.11.2010, it was further stated that prior to filing of suit, plaintiff had issued legal notice to defendant, who despite receipt, had failed to reply to same. It was further submitted that there was no material produced to establish that entire amount paid by plaintiff as earnest money in pursuance of agreement of sale was recorded as returned under Deed of cancellation dated 22.11.2010, which was totally false. And without proper consideration, trial Court had proceeded to allow application, therefore sought for setting aside order.
6. Heard learned counsel and perused writ petition records.
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7. On perusal of impugned order, it is seen that trial Court had taken note of rival contentions and specifically observed that validity of documents would have to be considered and decided at time of final disposal and verification of signatures of plaintiff on Deed of cancellation would require opinion of expert. It has further noted that after receipt of report, opportunity would be available to both parties.
8. It is settled law that power of trial Court for appointment of Court Commissioner is discretionary. Further as trial Court was of opinion that report of handwriting expert was required, it allowed application. Since trial Court has passed considered order taking note of plaintiff's contention and by balancing interests of both parties, I do not see any good or sufficient ground to interfere with impugned order, writ petition is lacking merits and is dismissed.
Sd/-
JUDGE GRD