Karnataka High Court
Sri Khadarappa vs Smt Gangamma on 1 February, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.26238 OF 2017 (GM-CPC)
BETWEEN:
Sri.Khadarappa
Since dead by his LRs
1(a) Smt.S.C.Narasamma
W/o late Narasimha Murthy
Aged about 62 years
1(b) Smt.Padmavathi
W/o Rangaswamaiah
D/o late Khadarappa
Aged about 50 years
R/at Kodigehalli
Urdigere Cross
Tumkur Taluk - 572 120.
1(c) Smt.Lakshmidevamma
W/o Kantharaju
D/o Narasimha Murthy
Aged about 49 years
R/at Samanahalli Village
Uttarahalli Hobli
Bengaluru South Taluk.
1(d) Chandrashekara Murthy
S/o late Narasimha Murthy
Aged about 44 years
2
1(e) Smt.Umavathi
D/o late Narasimha Murthy
W/o Nagaraj
Aged about 44 years
1(f) Sri.Gururaju
S/o late Naraimha Murthy
Aged about 41 years
1(a), 1(d), 1(e) and 1(f) are all
R/at Somanahalli, Uttarahalli Hobli
Bengaluru South Taluk
... PETITIONERS
(By Sri.Janardhana G., Advocate)
AND:
1. Smt.Gangamma
W/o late Narasaiah
Major,
R/o Somanahalli Village
Uttarahalli Hobli
Bangalore South Taluk.
2. Smt.Puttalakshmamma
Since deceased by her LRs.
2(a) Chikkarangaswamy
S/o late Smt.Puttalakshmamma
Aged about 71 years
2(b) Smt.Kamalamma
D/o late Smt.Puttalakshmamma
Aged about 66 years
2(c) Smt.Manjula
3
D/o late Smt.Puttalakshmamma
Aged about 60 years
2(a) to 2(c) are r/at
Medamaranahalli Village
Harohalli Post
Kanakapura Taluk
Ramanagar Dist - 562 112.
3. Smt.Puttanarasamma
Since deceased by her LRs
3(a) Gangaraju
S/o late Smt.Puttanarasamma
Aged about 72 years
3(b) Sri.Kantaraju
S/o late Smt.Puttanarasamma
Aged about 69 years
3(c) Smt.Gowaramma
D/o late Smt.Puttanarasamma
Aged about 64 years
3(d) Sri.Rangappa
S/o late Smt.Puttanarasamma
Aged about 60 years
3(e) Sri.Narayana
S/o late Smt.Puttanarasamma
Aged about 56 years
3(f) Sri.Nagesh
S/o late Smt.Puttanarasamma
Aged about 53 years
3(g) Sri.Ramesh
4
S/o late Smt.Puttanarasamma
Aged about 50 years
3(a) to (g) are all residing at
Karekal Palya, Maidala Post
Udigere Hobli, Tumkur Taluk
Tumakuru District - 572 140.
4. Smt.Sharadamma
D/o late Narasaiah
Major
5. Smt.Susheelamma
D/o late Narasiah
Major
Respondents 4 & 5 are residing
At Somanahalli, Uttarahalli Hobli
Bengaluru South Taluk - 560 082.
...RESPONDENTS
(By Sri.K.Srinivasa, Advocate for R1 & R4
R2(a), R2(c), R3(a), R3(c), R3(d), R3(e), R3(f) and R5 are
served but unrepresented
Vide order dated 30.01.2018, notice on R2(b) and R3(b
& g) is dispensed with)
This Writ Petition is filed under Article 227 of the
Constitution of India praying to quash the order dated
30.5.2017 and in rejecting I.A.13 in O.S.No.506/98
passed by the Addl. Civil Judge, Bengaluru under
Annexure-F and consequently allow the same and etc.
This Writ Petition coming on for Admission, this
day, the Court made the following:-
5
ORDER
The plaintiffs filed the present Writ Petition against the order dated 30.05.2017 rejecting application-I.A.No.13 made in O.S.No.506/1998 filed by the plaintiffs under Section 151 of Code of Civil Procedure to recall the order dated 12.01.2015 and to refer the matter to FSL along with proper documents.
2. The original plaintiff filed suit for declaration to declare that the plaintiff is the absolute owner of the suit schedule properties and to direct the defendants to execute the registered sale deed in the name of the plaintiff in respect of the suit schedule properties by issuing mandatory injunction and for permanent injunction restraining the defendants from interfering with the suit schedule properties contending that the plaintiff is the absolute owner of suit schedule properties and defendants have no manner of right, title and interest in respect of suit schedule properties. 6 Therefore, they filed the suit for relief sought for. During the pendency of the suit, original plaintiff died and his LRs were brought on record as plaintiffs 1(a) to 1(f).
3. The defendants filed the written statement denied the plaint averments and contended that the plaintiffs are not the owners of the suit schedule properties and there was no agreement and the suit filed by the plaintiffs is hopelessly barred by limitation and sought for dismissal of the suit. After completion of evidence, when the matter was posted for arguments, at that stage, the plaintiffs filed I.A.No.11 under Section 151 of Code of Civil Procedure to reopen the case and permit the plaintiff to file application under Order 26 Rule 10A of Code of Civil Procedure to refer the disputed signatures and left thumb mark of the 1st defendant- DW-1 and the signature of defendant No.3 as DW-3 to the FSL for comparison and to submit report and 7 I.A.No.12 under Order 16 Rule10 read with Section 151 of Code of Civil Procedure to refer the disputed signatures on Ex.P2 of the defendants especially DW-3 Smt.Sharadamma who is the defendant No.4 and the left hand thumb mark of DW-1-Smt.Gangamma who is the defendant No.1 with that of their admitted signatures on the vakalath, written statement and the LTM of DW-1 on the depositions for comparison and to submit report.
4. The trial Court considering the applications and objections, by order dated 17th September 2012 allowed the applications and ordered to be send the disputed Ex.P2, vakalath and written statement of the defendants to FSL.
5. The Director, Forensic Science Laboratories, Madivala by a letter dated 11.12.2014 addressed to the learned 1st Additional Civil Judge, Bangalore Rural District has returned the documents stating that the 8 disputed signatures found in Ex.P2 are of the year 1986, whereas the provided admitted signatures of DW- 3-Sharadamma in evidence by way of affidavit are of the year 2011, as such, there is about 25 years of time gap between the questioned and admitted signatures. To account the extent of natural variation due to time gap, 05 to 06 admitted signatures near to the period of 1985 are required for examination. Therefore, the documents were returned. Thereafter, the plaintiff filed another application-I.A.No.13 on 28.01.2015 under Section 151 of Code of Civil Procedure to recall the order dated 12.01.2015 and refer the matter to the FSL along with proper documents. The said application was rejected by the trial Court. Hence, the present Writ Petition is filed.
6. I have heard the learned counsel for the parties to the lis.
7. Sri.Janardhan, learned counsel for the petitioners contended that the impugned order passed 9 by the trial Court rejecting I.A.No.13 filed by the plaintiff under Section 151 of Code of Civil Procedure is erroneous and contrary to the material on record. He would further contend that when the trial Court come to the conclusion that the disputed signature in Ex.P2 to be compared with the admitted signature available on record under Ex.D1, the office instead of sending the proper records, if they have committed a mistake in sending the recent records, the Court below ought to have allowed the application of the petitioners in order to do justice between the parties. He would further contend that the earlier application for referring to handwriting expert was allowed and the same was returned by the FSL department only on the ground that there is gap of 25 years between two documents and on the other hand for comparison it requires 5 to 6 years gap. There is no reason to reject the application without considering the request of the petitioners that such documents are available for comparison and 10 accordingly, it can resend the same. The same has not been done. He would further contended that for the mistake committed by the office of the Court, the parties should not suffer. Hence, he sought to quash the impugned order passed by the trial Court by allowing the present Writ Petition.
8. Per contra, Sri.A.Madhusudhan Rao, learned counsel for the respondents-defendants sought to justify the impugned order passed by the trial Court and contended that the suit was filed in the year 1998 and we are in 2018. When the matter was posted for arguments on two earlier occasions, the plaintiffs filed one after the other applications to drag-on the proceedings. Therefore, he sought for dismissal of the Writ Petition.
9. Having heard the learned counsel for the parties, it is undisputed fact that the original plaintiff filed suit for declaration to declare that he is the 11 absolute owner of suit schedule property and for permanent injunction. The same was disputed by the defendants by filing written statement. It is also not in dispute that on the application filed by the plaintiff, the trial Court by an order dated 17th September 2012 allowed I.A.Nos.11 and 12 filed under Section 151 of Code of Civil Procedure and under Order 26 Rule 10A read with Section 151 of Code of Civil Procedure and referred the disputed Ex.P2, vakalath and written statement of the defendants to FSL. But the office of the Director, FSL, Madiwala by a letter dated 11.12.2014 returned all the documents on the ground that it is not possible for comparison with the documents signed about 25 years ago. The Director, FSL further observed that for comparison, it requires 5 to 6 years time gap of admitted signature. Thereafter, the present application was filed. Though the application came to be filed on 28.01.2015, reiterating for return of the documents to the FSL, there is no 12 proper reason, which are the documents to be sent and the same is not forthcoming.
10. The trial Court considering the application has recorded a finding that on perusal of the report of FSL, Madiwala, it reveals that there is a time gap of 25 years between the questioned and admitted signatures. Due to time gap, comparison cannot be done and hence, the Director, FSL returned the documents without examination. Now the petitioners are seeking to recall the said order and sought to resend the documents. Such an exercise cannot be done at present since there is a time gap of 25 years as observed by the Director, FSL, Madiwala in its report between the disputed and admitted signatures.
11. Though the learned counsel for the petitioners submits that Ex.P1-Palupatti dated 11.03.1986 is the admitted signature and Ex.P2-sale agreement dated 14.03.1986 is the disputed signature, 13 the same is not sought in the application. In the absence of proper prayer, now it is not open for the learned counsel for the petitioners to urge the said contentions. Even though the suit was filed in the year 1998 and we are in 2018 and after twenty years, now it is not possible to accede to the request of the petitioners. Therefore, the order passed by the trial Court rejecting the application-I.A.No.13 filed under Section 151 of Code of Civil Procedure is in accordance with law. The petitioners have not made out any ground to interfere with the same in exercise of powers under Article 227 of the Constitution of India.
However, it is made clear that the material documents viz., Ex.P2 and Ex.D1 are already on record. While deciding the main suit, it is for the trial Court to compare both the documents exercising its powers under the provisions of Section 73 of the Evidence of Act. If the trial Court found any difficulty in identifying 14 the admitted and disputed signatures, it is for the trial Court to take appropriate steps in accordance with law.
With the above observations, the Writ Petition is disposed of.
Sd/-
JUDGE Prs*