Karnataka High Court
Sri S Parthasarathy vs Smt. Radha Iyengar on 26 October, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
-1-
NC: 2023:KHC:38032
WP No. 23669 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO.23669 OF 2023 (GM-CPC)
BETWEEN:
SRI S PARTHASARATHY
S/O LATE SRINIVASA IYENGAR
AGED ABOUT 87 YEARS
EARLER RESIDED AT NO. 18
DUNNAR DALE ROAD, MORRISPLAINS
NEW JERSEY 07950
PRESENTLY LIVING AT NO. 25807
LENNOX HALE ROAD
ALDIE, VIRGINIA 20 105
USA
REPRESENTED BY HIS GPA HOLDER
Digitally signed by SRI.BADRI NARAYAN S.L
A K CHANDRIKA S/O LATE LAKSHMI NARASIMHAN
Location: High AGED ABOUT 64 YEARS
Court Of
Karnataka EARLIER R/AT NO.146/1
COLLEGE ROAD
CHAMARAJ MOHALLA
MYSURU - 570 024
AND PRESENTLY R/AT
FLAT NO. 102, S V RESIDENCY
NO.432, V M DOUBLE ROAD
KUVEMPU NAGAR,
MYSURU - 570 023
...PETITIONER
(BY SRI.ANANTHARAM G R.,ADVOCATE)
-2-
NC: 2023:KHC:38032
WP No. 23669 of 2023
AND:
1. SMT. RADHA IYENGAR
W/O LATE S NANDAKUMAR
MAJOR,
2. MS SANJANA IYENGAR
D/O LATE S NANDAKUMAR
MAJOR,
R.1 AND R2 R/AT NO. 7513,
SENVIKCOVE LANE, ORLANDO
FLORIDA 32819 USA
[[
1 & 2 ALSO R/AT
34 'DIVYA'
C/O MR. K S RAVINDRANATH
III CROSS MALLESWARAM
BENGALURU 560 003
SRI. S NARASIMHAN
S/O LATE SRI. SRINIVASA IYENGAR,
SINCE DECESED BY HIS LRS
3. SMT. S PREMA
W/O SRI. RAJA ACHAR
MAJOR
NO. 51 INDIAN RUN
MILLINGTON,
NEW JERSY 07946
USA
4. SMT. S GEETHA
W/O SRI. MANI KRISHNAN,
MAJOR
NO. 65 EDGEWOOD ROAD
BEDMISTER
NEW JES 07921
USA
5. SMT. S PRABHA
W/O SRI. EDGAR COX
-3-
NC: 2023:KHC:38032
WP No. 23669 of 2023
MAJOR,
2911 ARTESTRY COURT
LAS VEGAS 89117 USA
6. SRI. SAMAPATH
S/O LATE SRINIVASA IYENGAR
MAJOR
NO. 2727, MIRADERO DRIVE III
SANTA BARBARA
CALIFORNIA 931 06 (USA)
SRI. S JAIGOPAL
SINCE DECEASED BY HIS LRS
7. SMT LALITHA
W/O LATE SRI.S JAI GOPAL
MAJOR
8. MR. SUDHIR MAJOR
S/O LATE SRI. S JAI GOPAL
MAJOR
9. MS. SUMA
D/O LATE SRI. S JAI GOPAL
MAJOR
7 TO 9 ARE R/AT 289, LAKSHMIVILAS ROAD
MYSURU - 570 024
10. SRI. K S RAVINDRANATH
MAJOR
NO. 34 DIVYA
III CROSS MALLESHWARAM
BENGALURU 560 003
...RESPONDENTS
(BY SRI.B.N.PRAKASH., ADVOCATE FOR R-2)
THIS WP IS FILED PRAYING TO-CALL FOR RECORDS IN
O.S.NO.5723 OF 1996 PENDING ON THE FILE OF THE LEARNED
XXXIII CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE
(NDPS), BENGALURU (CCCH.NO.33)QUASH THE ORDER OF
DISMISSAL DTD 31.8.2023 UNDER ANNEXURE-J PASSED ON
THE APPILCATION, I.A.NO.8 FILED BY THE PETITIONER U/S 45
AND 73 OF THE INDIAN EVIDENCE ACT R/W ORDER 26 RULE
-4-
NC: 2023:KHC:38032
WP No. 23669 of 2023
10-A AND SECTION 151 OF THE CODE OF CIVIL PROCEDURE,
IN OS.NO.5723 OF 1996, PASSED BY THE LEARNED XXXIII
CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE
(NDPS) BENGALURU ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/plaintiff in O.S.No.5723/1996 on the file of City Civil Judge, Bangalore is before this Court, questioning order dated 31.08.2023 rejecting I.A.No.8 filed under Sections 45 and 73 of Indian Evidence Act read with Order XXVI Rule 10-A of CPC.
2. Heard learned counsel Sri.Anantharam G.R. for petitioner/plaintiff and learned counsel Sri.B.N.Prakash for respondent No.2/defendant No.2 before the trial Court. Perused the writ petition papers.
3. Learned counsel for the petitioner would submit that the suit of the petitioner/plaintiff is one for declaration, to declare Deed of Release dated 28.02.1987 executed by defendants Nos.3 to 5 in favour of husband of defendant No.1 and father of defendant No.2 as null and void, -5- NC: 2023:KHC:38032 WP No. 23669 of 2023 ineffective and not binding on the plaintiff and consequential injunction. It is submitted that when the suit was at the stage of cross-examination of defendant No.2, the petitioner/plaintiff filed I.A.No.8 under Sections 45 and 73 of Indian Evidence Act r/w Order XXVI Rule10-A of CPC to refer the admitted signatures' samples of second defendant along with her admitted signature on vakalathnama dated 05.05.2022 and affidavit filed on 11.07.2023 to the Director, Forensic Science Laboratory, Madiwala, Bengaluru for opinion after scientific examination, comparison with the disputed signatures marked as Ex.P47(a), (b), (c), and (d) found on the purported written statement marked as Ex.P47 and that found on purported vakalath marked as Ex.D48.
4. Learned counsel for the petitioner would submit that the signature found on written statement is not the signature of defendant No.2 and it is forged one. Learned counsel inviting attention of this Court to deposition of D.W.2 particularly paragraph 23 would submit that the -6- NC: 2023:KHC:38032 WP No. 23669 of 2023 defendant No.2 has admitted variation of signatures on Ex.P47, Ex.P48 and Ex.P49. The written statement is filed on 26.06.2010 whereas on the said date respondent No.2/defendant No.2 was at Florida which is admitted by her in her deposition. Therefore, it is submitted that defendant No.2 could not have filed written statement on the said date before the Court. Hence, learned counsel would pray for referring the signatures found on the written statement of defendant No.2 with the admitted signatures of defendant No.2 for scientific examination.
5. Per contra, learned counsel Sri.B.N.Prakash for respondent No.2/defendant No.2 would submit that respondent No.2/defendant No.2 has admitted her signatures on the written statement as well as vakalath filed before the Court and when defendant No.2 has no grievance with regard to the written statement or signature found on the written statement, the petitioner/plaintiff cannot have any grievance. The written statement which is taken on record as Annexure-D would -7- NC: 2023:KHC:38032 WP No. 23669 of 2023 in no way prejudices the case of the petitioner/plaintiff. Thus, he justifies the order passed by the trial Court.
6. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the petitioner has not made out any ground to interfere with the impugned order. Moreover, the impugned order is neither perverse nor suffers from any material irregularity so as to warrant interference under Article 227 of the Constitution of India.
7. Under Article 227 of the Constitution of India, this Court would exercise supervisory jurisdiction and supervisory jurisdiction is not to correct every error or fact or even a legal flaw when it is supported by reasons. Normally, High Curt would not substitute its own decision for that of trial Court. Jurisdiction under Article 227 of the Constitution of India is to be exercised sparingly in appropriate cases. High Court can exercise jurisdiction under Article 227 of the Constitution of India if the finding is so perverse that no reasonable person can possibly -8- NC: 2023:KHC:38032 WP No. 23669 of 2023 come to such a conclusion that Trial Court has come to (GARMENT CRAFT V/S. PRAKASH CHAND GOEL1).
8. In the case on hand, defendant No.2 filed written statement in the year 2010 and the said written statement was taken on record and the petitioner/plaintiff herein never disputed the veracity of written statement or signature on the written statement. I.A.No.8 was filed when the suit was at the stage of cross-examination of defendant No.2 under Section 45 and 73 of the Indian Evidence Act read with Order XXVI Rule 10-A of CPC to refer the admitted signatures of defendant No.2 along with her admitted signatures on the vakalathnama dated 05.05.2022 for comparison with the disputed signatures marked as Ex.P47(a), (b), (c) and (d) and Ex.P48. Ex.P47 is written statement of defendant No.2 and Ex.P48 is vakalathnama of defendant No.2. Defendant No.2 would admit that signature contained in Ex.P47 - written statement is her signature. Only plaintiff disputes that it is 1 (2022) 4 SCC 181 -9- NC: 2023:KHC:38032 WP No. 23669 of 2023 not the signature of defendant No.2. When defendant No.2 herself admits that it is written statement filed with her signature, petitioner/plaintiff cannot have any grievance.
9. The Trial Court in the course of its impugned order at paragraph 9 has observed as follows:
"9. It is necessary for me to note that DW.2 in the cross examination has categorically has admitted that Ex.P47 and P48 signatures are different from Ex.P49 and she has also given explanation that when she was very young she had affixed a signatures on Ex.P47 and 48. She has also denied the suggestion that the signatures found on the vakalath 2.6.2010 and the written statement are not made by her. The party who has signed the document is not disputing that she has not affixed signature on the said documents. The explanation given by her has to be taken note of by this court. In the year 2010 the defendant No.2 herein is young aged and she has affirmatively stated that in that age she has put her fancy signature. When the party who has affixed the signature has categorically admitted
- 10 -
NC: 2023:KHC:38032 WP No. 23669 of 2023 that there is a variation in the signature of Ex.P47, P48 with that of her admitted signature. the question of referring the said signatures to expert for analysis does not arise for consideration. The party who has affixed signature had given explanation for variation in the signature. She has not, stated that she has not affixed her signature on the said document. When such being the case there is no point in referring them for scientific analysis."
A reading of the above would make it clear that defendant No.2 has stated that signatures on Ex.P47 and Ex.P48 are her signatures and with regard to variation in the signatures, she has explained that when she was very young she had affixed her signatures on Ex.P47 and Ex.P48. Further, she has denied the suggestion that signatures found on vakalathnama and written statement are not made by her. When defendant No.2 admits her signatures and also explains with regard to variation, Trial Court has rightly come to the conclusion that there is no need for referring the signatures for scientific analysis as prayed in the application.
- 11 -
NC: 2023:KHC:38032 WP No. 23669 of 2023
10. Under Section 73 of the Indian Evidence Act, it is for the Court to compare the signatures or writing or seal disputed with that of admitted signatures or writing or seal. Therefore, I am of the view that there is no merit in the writ petition and much less no ground is made out to interfere with impugned order.
Accordingly, writ petition stands dismissed.
Sd/-
JUDGE MPK CT:RSS List No.: 1 Sl No.: 49