Karnataka High Court
C Rajashivashankar vs P R Shasank Teja on 5 December, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:43939
WP No. 1457 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 1457 OF 2021 (GM-CPC)
BETWEEN:
1. C RAJASHIVASHANKAR
S/O LATE CHANDRASHEKARAIAH
AGED ABOUT 65 YEARS
R/AT VALLABAI ROAD
BRAHMINS STREET
SRINIVASPURA TOWN
KOLAR DISTRICT-563101.
2. R RAKSHA
D/O RAJASHIVASHANKAR
AGED ABOUT 33 YEARS
R/AT NO.541, 2B MAIN ROAD
2ND BLOCK, 2ND STAGE
PAPAREDDY PALYA
Digitally signed by NAGARABHAVI
A K CHANDRIKA
BANGALORE-560079.
Location: High
Court Of ...PETITIONERS
Karnataka (BY SRI. UMESH B. N., ADV.)
AND:
1. P R SHASANK TEJA
S/O C RAMESH
AGED ABOUT 32 YEARS
2. P.R. VISHNU PRIYA
D/O C RAMESH
AGED ABOUT 27 YEARS
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NC: 2023:KHC:43939
WP No. 1457 of 2021
RESPONDENTS 1 AND 2 ARE
R/AT NO.125/2
NEAR SHYLENDRA SCHOOL
RAMAKRISHNA EXTENSION
SRINIVASPUR TOWN
KOLAR DISTRICT-563101.
3. S S MANJUNATH
S/O S R SRIDHAR MURTHY
AGED ABOUT 37 YEARS
R/AT NO.16, 1ST MAIN ROAD
SHARADA NAGAR
YELAHANKA NEW TOWN
GKVK POST
BANGALORE-560064.
4. S S MADHUKAR
S/O S R SRIDHAR MURTHY
AGED ABOUT 35 YEARS
R/AT NO.442/C, 1ST A CROSS
IDEAL HOME TOWNSHIP
RAJARAJESHWARI NAGAR
BANGALORE-560098.
5. R RANGANATH
S/O RAJASHIVASHANKAR
AGED ABOUT 35 YEARS
R/AT NO.541, 2B MAIN ROAD
2ND BLOCK, 2ND STAGE
PAPAREDDY PALYA
NAGARABHAVI
BANGALORE-560079.
6. N MANASA
D/O C NAGABUSHAN
AGED ABOUT 31 YEARS
7. N ARUNA
D/O C NAGABUSHAN
AGED ABOUT 25 YEARS
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NC: 2023:KHC:43939
WP No. 1457 of 2021
RESPONDENT NO.6 AND 7 ARE
R/AT NO.21, 4/6-135
TEACHERS COLONY, HINDUPUR
ANANTHAPUR DISTRICT
ANDRAPRADESH.
...RESPONDENTS
(BY SRI.SRIDHAR B.R., ADV. FOR
SRI M SHIVAPRAKASH, ADV. FOR R1 TO R4
R5-SERVICE OF NOTICE IS D/W V.C.O. DT:19.01.2023
R6 & R7 - SERVED & UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
IMPUGNED ORDER DATED 10.11.2020 PASSED IN
O.S.NO.87/2016 I.A.12 PENDING ON THE FILE OF THE COURT
OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC KOLAR
VIDE ANNEXURE-A AND FURTHER BE PLEASED TO ALLOW THE
APPLICATION FILED UNDER ORDER 26 RULE 10(A) OF CPC
VIDE ANNEXURE-K.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/defendants in O.S.No.87/2016 on the file of the II Additional Senior Civil Judge and JMFC, Kolar are before this Court, questioning the order dated 10.11.2020 rejecting I.A.No.12 filed under Order XXVI Rule 10(A) of CPC praying to appoint Scientific Officer as Court Commissioner for comparing signature on Ex.P3 and Ex.D1 with admitted signatures on record. -4-
NC: 2023:KHC:43939 WP No. 1457 of 2021
2. Heard learned counsel Sri.Umesh B.N. for petitioners/defendants and learned counsel Sri.Sridhar B.R. for Sri.M.Shivaprakash, learned counsel for respondents No.1 to 4/plaintiffs. Perused the writ petition papers.
3. The suit of the respondents/plaintiffs is for partition and possession of half share in the suit schedule property. Learned counsel for the petitioners would submit that the respondents/plaintiffs are claiming through Ex.P3- unregistered Will whereas petitioners/defendants are claiming through Ex.D1-registered Will which is admitted by the respondents/plaintiffs. It is the contention of the petitioners/defendants that Ex.P3 unregistered Will is created and it is a fabricated one. Learned counsel would submit that though attestors to both the documents are examined, it would not be sufficient to prove or disprove the Will placed on record as Ex.P3. In the facts and circumstances, he submits that when the suit was at the stage of arguments, the petitioners/defendants filed -5- NC: 2023:KHC:43939 WP No. 1457 of 2021 I.A.No.12 under Order XXVI Rule 10(A) of CPC requesting the Court to appoint Court Commissioner to compare signatures on Ex.P3 as well as Ex.D1 with the admitted signatures of one Smt.Rukmini. Learned counsel would submit that the report of the Court Commissioner i.e., Hand Writing Expert would assist the Court in proper appreciation of the dispute between the parties. Further, he submits that when the petitioners/defendants denied existence of unregistered Will, it would be expedient for the trial Court to appoint Commissioner i.e., Hand Writing Expert and obtain report. Thus, he prays for allowing the writ petition.
4. Learned counsel for the respondents/plaintiffs Sri.Sridhar submits that I.A. is filed belatedly that too when the suit was at the stage of arguments. Learned counsel would submit that material on record would be sufficient to decide the issue involved in the suit. Therefore, he justifies the order passed by the trial Court and prays for dismissal of the writ petition. -6-
NC: 2023:KHC:43939 WP No. 1457 of 2021
5. Having heard the learned counsel for the parties and on perusal of the writ petition, I am of the view that the trial Court committed an error in rejecting I.A.No.12 filed under Order XXVI Rule 10(A) of CPC, to appoint the Court Commissioner i.e. Hand Writing Expert to compare the signatures of Smt.Rukmini on Ex.P3 and Ex.D1 along with admitted signatures in the registered Will dated 18.10.2008.
6. Admittedly, unregistered Will is marked as Ex.P3 whereas registered Will produced by the defendants/ petitioners herein is marked as Ex.D1. Petitioners/ defendants would dispute the signatures of Smt.Rukmini on Ex.P3-unregistered Will. Though the attestors to Ex.P3 and Ex.D1 are examined, it is the main contention of the petitioners/defendants that Will Ex.P3 is created and fabricated one. In that circumstances, it would be appropriate for the Court to appoint the Court Commissioner i.e., Hand Writing Expert to compare the disputed signature on Ex.P3 and Ex.D1 with the admitted -7- NC: 2023:KHC:43939 WP No. 1457 of 2021 signatures on record and to obtain the report. The said report would assist the Court in proper appreciation of the dispute between the parties. Hence, the following order:
The writ petition is allowed. The impugned order dated 10.11.2020 on I.A.No.12 filed under Order XXVI Rule 10(A) of CPC is set aside. The trial Court is directed to appoint the Court Commissioner i.e., Hand Writing Expert and refer Ex.P3 and Ex.D1 along with the admitted signatures on record for comparison.
Sd/-
JUDGE MPK CT:bms List No.: 1 Sl No.: 57