Karnataka High Court
Shyla @ Shylaja Rangaraju vs M. V. Shivaramu on 20 June, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:21770
WP No. 1849 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 1849 OF 2023 (GM-CPC)
BETWEEN:
SHYLA @ SHYLAJA RANGARAJU,
W/O SRI LATE RANGARAJU,
AGED ABOUT 68 YEARS,
R/O NO MIG.39,
KUVEMPU NAGAR,
HASSAN - 573 201.
...PETITIONER
(BY SMT. SUMANGALA.A.SWAMY, ADVOCATE)
AND:
1. M. V. SHIVARAMU,
S/O LATE GUNDURAO,
AGED ABOUT 62 YEARS,
Digitally signed
by SUCHITRA M J R/O NO.985, 4TH MAIN,
Location: High
Court of 5TH CROSS,
Karnataka
K R PURAM,
HASSAN - 573 201.
2. M V KUMARA SWAMY,
S/O LATE GUNDURAO,
AGED ABOUT 59 YEARS,
R/O NO.985, 4TH MAIN,
5TH CROSS, K R PURAM,
HASSAN - 573 201.
3. RADHA W/O GOPAL KRISHNA,
AGED ABOUT 46 YEARS,
R/O SRI KANTA NILAYA,
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NC: 2023:KHC:21770
WP No. 1849 of 2023
NO.257, 2ND STAGE, GOKUL,
MYSORE - 27.
4. SHAMBHAVI,
D/O M V GOPAL KRISHNA,
AGED ABOUT 22 YEARS,
R/O SRI KANTA NILAYA,
NO.257, 2ND STAGE, GOKUL,
MYSORE - 27.
5. M V SOMASHEKAR,
S/O LATE GUNDU RAO,
AGED ABOUT 54 YEARS,
R/O HONDADA
GANAPATHI TEMPLE ROAD,
CHIKKAMAGALURU - 572 221.
...RESPONDENTS
(BY SRI. K.S. GANESHA, ADVOCATE FOR R1 TO R3 AND R5;
VIDE ORDER DATED 23.05.2023, NOTICE TO R4 IS
DISPENSED WITH)
THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION
OF INDIA PRAYING TO QUAHSING THE ORDER DATED 07/01/2023 ON
I.A.NO. 16, PASSED BY THE LEARNED II ADDL. SENIOR CIVIL JUDGE AT
HASSAN ORDER 26 RULE 10 AND 10A R/W SECTION 151 OF C P C TO
VERIFY THE AUTHENTICITY AND GENUINITY OF EX P 24 AND EX D-14 IN
O S NO. 157/2016 PRODUCED VIDE ANNEXURE-E AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:21770
WP No. 1849 of 2023
ORDER
This petition is directed against the impugned order dated 07.01.2023 passed on I.A.No.16 filed by respondents-defendants in O.S.No.157/2016 by the II Additional Senior Civil Judge and JMFC, Hassan, whereby the trial Court allowed the said application and directed appointment of a Court Commissioner/Forensic Expert to verify the authenticity and genuineness of documents at Ex.D14 and Ex.P24 produced by the parties.
2. Heard the learned counsel for the petitioner and learned counsel for respondent Nos.1 to 3 and 5. Perused the material on record.
3. The material on record discloses that the petitioner-
plaintiff instituted the aforesaid suit against the respondents-
defendants for partition and separate possession for the alleged share in the suit schedule immovable properties and the said suit is being contested by the respondents.
4. During the course of evidence, the petitioner-plaintiff examined herself as PW.1 and Ex.P24 was marked on her behalf.
The respondents disputed the genuineness, legality, validity and -4- NC: 2023:KHC:21770 WP No. 1849 of 2023 correctness of Ex.P24 produced by the petitioner. Subsequently, during the course of their evidence, the respondents-defendants produced one more document, which is marked at Ex.D14.
However, the genuineness, legality, validity and correctness of Ex.D14 has been seriously disputed by the petitioner-plaintiff.
In other words, while the petitioner-plaintiff contends that Ex.D14 is a tampered and concocted document, the respondents-defendants contend that Ex.P24 is a concocted and tampered document.
Under these circumstances, upon the instant application-I.A.No.16 filed by respondent No.2-defendant No.2, the trial Court proceeded to pass the impugned order allowing I.A.No.16 by holding as under:
"7.Point No.1:- Admittedly, the present suit is filed by the plaintiff against defendants seeking decree for partition and separate possession. I have perused the pleadings of both parties. The defendants have took a specific defence that plaintiff has relinquished her right over suit properties by receiving Rs.25,00,000/- and executing agreement dated 21- 08-2010. Admittedly, the present application is filed by the 2nd defendant when case was at the stage of further evidence of the defendants. The present application is filed for seeking appointment of Commissioner to examine Ex.P-24 and Ex.D-14 to decide their authenticity and genuinity. According to the defendants under the agreement dated 21-08-2010 the plaintiff has relinquished her right over the suit property and she had agreed to execute the Relinquish deed after received balance amount from the defendant. It is also case of the defendants -5- NC: 2023:KHC:21770 WP No. 1849 of 2023 that by using original document the plaintiff converted the same through electronically editing and produced the document in the style as "MlÄÖ PÀÄlÄA§zÀ DzÁAiÀÄ «¨sÀd£À M¥ÀàAzÀ PÀgÁgÀÄ ¥ÀvÀæ". Admittedly, the 2nd defendant had filed I.A.No.11 seeking permission to mark the said document dated 21-08-2010 which is xerox copy as a secondary evidence. The plaintiff has also filed I.A.No.12 to receive the document in the style as "MlÄÖ PÀÄlÄA§zÀ DzÁAiÀÄ «¨sÀd£À M¥ÀàAzÀ PÀgÁgÀÄ ¥ÀvÀæ" which is xerox copy as a secondary evidence. As per the order dated 05-01-2021 the defendant No.1 and plaintiff respectively were permitted to mark the said respective documents as a secondary evidence observing that geninity of these documents cannot be decided at that stage. And, it has to be decided by only on marking the documents and subjected for cross-examination of the plaintiff and defendants.
8. In order to decide this application, the relevant portion of Ex.P-24 at page.No.3 is to be reproduced here which reads thus:- "¸ÀzÀj M¥ÀàAzÀzÀ jÃvÁå JgÀqÀ£Éà ¥ÁnðUÀ¼ÁzÀ ¤ÃªÀÅ £À£Àß ªÀiÁªÀ£ÀªÀgÁzÀ JA.¹.UÀÄAqÀÆgÁªï gÀªÀgÀ MlÄÖ PÀÄlÄA§zÀ DzÁAiÀÄzÀ «¨sÀd£É¬ÄAzÀ §AzÀAvÀºÀ ¸ÀªÀĸÀÛ ªÀåªÀºÁgÀ G½¹PÉÆAqÀÄ ¸ÀzÀj D¹ÛUÀ½AzÀ £À£Àß »¸ÉìUÉ §gÀĪÀ ¸ÀéwÛ£À ¨Á§ÄÛ EA¢£ÀªÀgÉUÉ ¨ÉˉÉ jÃvÁå gÀÆ.32,50,000/- (ªÀÄƪÀvÉÛÃgÀqÀÄ ®PÀëzÀ LªÀvÀÄÛ ¸Á«gÀ gÀÆ¥À¬ÄUÀ¼ÀÄ) DVgÀÄvÀÛzÉ. D ºÀtzÀ ¨Á§ÄÛ £ÀäªÀUÀ¼É®ègÀ ºÁUÀÆ ¸ÁQëÃzÁgÀgÀ ¸ÀªÀÄPÀëªÀÄ JgÀqÀ£Éà ¥ÁnðUÀ¼ÁzÀ ¤ÃªÀÅ ªÀÄÄAUÀqÀªÁV LzÀÄ ®PÀë (gÀÆ.5,00,000-00) gÀÆ¥Á¬ÄUÀ¼ÀߣÀÄ ºÁ¸À£ÀzÀ PÁ¥ÉÆ ÃðgÉõÀ£ï ¨ÁåAPï, PÉ.Dgï.¥ÀÄgÀA ±ÁSÉAiÀÄ ZÉ Pï £ÀA.056281 ªÀÄvÀÄÛ EzÉà ±ÁSÉAiÀÄ ZÉPï £ÀA.056283 ¢£ÁAPÀ 21-08-2010 gÀ ªÀÄÆ®PÀ £À£ÀUÉ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrgÀÄwÛÃj. ¸ÀzÀj ºÀtªÀ£ÀÄß ªÉÄîÌAqÀ ZÉPï UÀ¼À ªÀÄÆ®PÀ ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛãÉ. ¨ÁQ £À£Àß »¸Éì ¨Á§ÄÛ ºÀtªÀ£ÀÄß CAzÀgÉ gÀÆ.27,50,000/- (E¥ÀàvÉÛüÀÄ ®PÀëzÀ LªÀvÀÄÛ ¸Á«gÀ gÀÆ ¥Á¬ÄUÀ¼À£ÀÄß) EA¢¤AzÀ 3 wAUÀ¼À M¼ÀUÉ ¥ÁªÀw ªÀiÁqÀ®Ä ¤ÃªÀÅUÀ¼É®ègÀÆ M¦àgÀÄwÛÃj. £À£Àß »¸Éì ¨Á§ÄÛ ºÀt ¨ÁQ gÀÆ.27,50,000/- (E¥ÀàvÉÛüÀÄ ®PÀëzÀ LªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ ¥ÀÆtð -6- NC: 2023:KHC:21770 WP No. 1849 of 2023 ¸ÀAzÁAiÀÄ ªÀiÁqÀÄvÉÛÃªÉ £ÀAvÀgÀ £Á£ÀÄ E£ÀÄß ªÀÄÄAzÉ AiÀiÁªÀÅzÉà MlÄÖ PÀÄlÄA§zÀ DzÁAiÀÄ «¨sÀd£ÉUÉ ¨ÁzÀå¼ÁUÀĪÀÅ¢®è, F PÀgÁgÀÄ AiÀiÁªÀÅzÉà D¹Û ¥Á®ÄzÁjPÉ ¥ÀvÀ檮 À è DzÀÝjAzÀ ¸ÀªÀĸÀÛ ¹ÜgÁ¹ÛAiÀÄ ¥Á®ÄzÁjPÉUÉ ªÀiÁvÀæ £ÁªÉ®ègÀÄ M¼À¥ÀnÖgÄÀ vÉÛêÉ".
9. At the same time the relevant portion of Ex.D-14 at page.3 is to be reproduced here which read thus:-
"¸ÀzÀj M¥ÀàAzÀzÀ jÃvÁå JgÀq£ À Éà ¥ÁnðUÀ¼ÁzÀ ¤ÃªÀÅ £À£Àß ªÀiÁªÀ£ª À ÀgÁzÀ JA.¹.UÀÄAqÀÆgÁªï gÀªÀgÀ ¸ÀªÀĸÀÛ ZÀgÀ¹ÛgÁ¹Û ªÀÄvÀÄÛ ¸ÀªÀĸÀÛ ªÀåªÀºÁgÀ G½¹PÉÆAqÀÄ ¸ÀzÀj D¹ÛUÀ½AzÀ £À£Àß »¸ÉìUÉ §gÀĪÀ ¸ÀéwÛ£À ¨Á§ÄÛ ºÀt ¥ÁªÀwªÀiÁqÀĪÀÅzÁV ¤ÃªÀÅUÀ¼ÀÄ ºÉýzÀÝjAzÀ £Á£ÀÄ M¦àgÀÄvÉÛãÉ. £À£Àß »¸Éì ¨Á§ÄÛ EA¢£À ªÀiÁgÀÄPÀmÖÉ ¨ÉˉÉ jÃvÁå gÀÆ.32,50,000/- (ªÀÄƪÀvÉÛÃgÀqÀÄ ®PÀëzÀ LªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ) DVgÀÄvÀÛzÉ. D ºÀtzÀ ¨Á§ÄÛ £ÀªÀÄäUÀ¼É®ègÀ ºÁUÀÆ ¸ÁQëÃzÁgÀgÀ ¸ÀªÀÄPÀëªÄÀ JgÀqÀ£ÃÉ ¥ÁnðUÀ¼ÁzÀ ¤ÃªÀÅ ªÀÄÄAUÀqÀªÁV LzÀÄ ®PÀë (gÀÆ.5,00,000-00) gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ºÁ¸À£ÀzÀ PÁ¥ÉÆÃðgÉõÀ£ï ¨ÁåAPï, PÉ.Dgï.¥ÀÄgÀA ±ÁSÉAiÀÄ ZÉPï £ÀA.056281 ªÀÄvÀÄÛ EzÉà ±ÁSÉAiÀÄ ZÉPï £ÀA.056283 ¢£ÁAPÀ 21-08-2010 gÀ ªÀÄÆ®PÀ £À£ÀUÉ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrgÀÄwÛÃj. ¸ÀzÀj ºÀtªÀ£ÀÄß ªÉÄîÌAqÀ ZÉPï UÀ¼À ªÀÄÆ®PÀ ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛãÉ. ¨ÁQ £À£Àß »¸Éì ¨Á§ÄÛ ºÀtªÀ£ÀÄß CAzÀgÉ gÀÆ.27,50,000/- (E¥ÀàvÉÛüÀÄ ®PÀëzÀ LªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ) UÀ¼À£ÀÄß EA¢¤AzÀ 3 wAUÀ¼À M¼ÀUÉ ¥ÁªÀw ªÀiÁqÀ®Ä ¤ÃªÀÅUÀ¼É®ègÀÆ M¦àgÀÄwÛÃj. £À£Àß »¸Éì ¨Á§ÄÛ ºÀt ¨ÁQ gÀÆ.27,50,000/- (E¥ÀàvÉÛüÀÄ ®PÀëzÀ LªÀvÀÄÛ ¸Á«gÀ gÀÆUÀ¼ÀÄ) ¥ÀÆtð ¸ÀAzÁAiÀĪÁzÀ £ÀAvÀgÀ £Á£ÀÄ ¤ªÀÄäUÀ½UÉ £À£Àß ºÉ¸ÀjUÉ §gÀ¨ÉÃPÁzÀ »¸Àì D¹ÛAiÀÄ£ÀÄß JgÀqÀ£Éà ¥ÁnðUÀ¼ÁzÀ ¤ªÀÄä ªÀ±ÀPÌÉ RÄˉÁè¸É ªÀÄÆ®PÀªÁUÀ°Ã CxÀªÁ £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÆ®PÀ DUÀ°Ã PÁ£ÀÆ£ÀÄ jÃvÁå §gÉzÀÄPÉÆqÀ¨ÉÃPÁzÀ zÁRˉÉAiÀÄ£ÀÄß ¤ÃªÀÅUÀ¼ÀÄ ¨ÁQ G½zÀ ºÀt ¥ÁªÀw ªÀiÁqÀĪÀ ¸ÀAzÀ¨sÀðzÀ°è £ÉÆÃAzÀt ªÀiÁrPÉÆqÀ®Ä §zÀݼÁVgÀÄvÉÛãÉ".
10. From combined reading of Ex.P-24 and Ex.D-14 which are admittedly Xerox copies are marked as a secondary -7- NC: 2023:KHC:21770 WP No. 1849 of 2023 evidence, it is seen that the contents of page.1 and 2 of these two documents are one and the same. The contents of page.3 of Ex.P-24 and Ex.D-14 are all together different. Page.No.3 of Ex.D-14 contains round seal of national emblem. But, said round seal of national emblem is not forthcoming in page.3 of Ex.P-24. Admittedly, these two documents are not original or copies of the originals, but they are the Xerox copies of the unregistered document. The geninity and authenticity of these two documents cannot be decided at this stage by combined study of Ex.P-24 and Ex.D-14. It is seen that some mischief has been played by parties to the suit. The person who has committed mischief is to be find out by the Court. The only crucial point to be decided by this Court as to which of this document is genuine and true document. In order to decide this issue, the assistance of the opinion of the expert is very much necessary which would throw light on the case of the parties. The opinion of expert is not a conclusive proof, but it would assist the Court to take just decision and effective adjudication of the dispute between the parties to the sit effectively.
11. The learned counsel for the plaintiff cited following decisions:-
1. AIR 1992 GUJARAT 95 in case of Kishor Kumar and another Vs. Rakeshkumar Jayprakash Agrawal and others.
I have carefully gone through this decision in detail. In this decision, the order passed by the trial Court appointing the Commissioner for getting or to direct the Commissioner appointed to get the copies of the data/material contained in the computers on floppy discs with assistance of experts and the line was challenged before Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka come to -8- NC: 2023:KHC:21770 WP No. 1849 of 2023 conclusion that the order passed by the trial Court was within the jurisdiction and said order said order was set aside. But, in the present case on hand, the defendants are not seeking appointment of Commissioner to get the copies of any data materials contained the computers on the floppy. Therefore, with due respect to the dictum laid down I this decision, I am of the humble opinion that it has no application to the case on hand.
2. AIR 2012 KARNATAKA 171 in case of M.Ramaiah Muthurayappa Vs. Narasimhaiah Pillappa and others. I have carefully gone through this decision in detail. This decision deals with respect to the appointment of Commissioner for comparison of the disputed signature of the parties with admitted signature. In the case on hand, the signature of the parties has not been sought for comparison by handwriting expert. The request by the defendant No.2 to sent Ex.P-24 and Ex.D-14 to the expert to decide the genuinity of Ex.P-24. Therefore, with due respect to the dictum laid down in this decision, I am of the opinion that this decision also does not come to the rescue of the plaintiff as facts and circumstances of the present case is distinguishable one.
3. AIR 2011 ANDHRA PRADESH 78 in case of Jalagadugla Eswara Rao and others Vs. Davala Surya Rao. This decision is also deals with respect to the sending of the disputed document for comparison of the disputed signature with admitted signature of the party to the hand writing experts and to get opinion of the handwriting expert. But, in the present case on hand, as I have already observed above, the 2 nd defendant is not seeking comparison of any of the disputed signature in the document. Therefore, with due respect to the dictum laid down in this decision, I am of the humble opinion -9- NC: 2023:KHC:21770 WP No. 1849 of 2023 that this decision is also not directly applicable to the facts of the present case as the facts and circumstances of the present case is distinguishable one.
For the reasons discussed above, I come to conclusion that this Ex.P-24 and Ex.D-14 are to be sent to the Forensic expert seeking this report to decide the genuinity of these two documents. Therefore, I answer Point No.1 in affirmative.
12. Point No.4:- For the reasons discussed on Points No.1, I proceed to pass the following:-
ORDER I.A.No.16 filed by the 2nd defendant U/O 26 Rule -10 and 10(A) of C.P.C., is hereby allowed.
Call on to file memo of instruction and to suggest the name of the Commissioner by the defendants by 30-01-2023."
5. As can be seen from the aforesaid order passed by the trial Court, the same does not suffer from any illegality or infirmity warranting interference of this Court in exercise of its powers under Article 227 of the Constitution of India, as held by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath reported in (2015) 5 SCC 423.
6. Under these circumstances, I am of the considered opinion that the impugned order passed by the trial Court cannot be said to have occasioned failure of justice nor does the same
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NC: 2023:KHC:21770 WP No. 1849 of 2023 suffer from any illegality or infirmity warranting interference by this Court in the present petition.
7. In this context, it is relevant to note that serious dispute between the petitioner and respondents as regards the genuineness, legality, validity and correctness of Ex.P24 on one hand and Ex.D14 on the other, which necessarily have to be sent to the Central Forensic Science Laboratory, Directorate of Forensics Science Services Ministry of Home Affairs, Government of India, Amberpet Post, Ramanthapur Hyderabad-500013, Telangana, at the cost of respondent No.2-defendant No.2 with a direction to submit report in this regard.
8. In the result, I proceed to pass the following:
ORDER i. Petition is hereby disposed of without interfering with the impugned order;
ii. The trial Court is directed to send Ex.P24 and Ex.D14 to the Central Forensic Science Laboratory, Directorate of Forensics Science Services Ministry of Home Affairs, Government of India, Amberpet Post, Ramanthapur
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NC: 2023:KHC:21770 WP No. 1849 of 2023 Hyderabad-500013, Telangana, to submit a report in relation to the said documents.
iii. All expenses towards securing a report from the
Central Forensic Science Laboratory,
Directorate of Forensics Science Services
Ministry of Home Affairs, Government of India, Amberpet Post, Ramanthapur Hyderabad-
500013, Telangana, has to be borne solely by respondent No.2 and not by the petitioner.
iv. The trial Court is directed to take steps to secure report as expeditiously as possible and proceed further to dispose of the suit in accordance with law on or before 21.12.2023.
v. All rival contentions on all aspects of the matter,
including the genuineness, validity,
admissibility, proof and etc., of all documents including Ex.P24 and Ex.D14 are kept open and no opinion is expressed on the same.
Sd/-
JUDGE SMJ List No.: 2 Sl No.: 40