Karnataka High Court
Syed Ashraff vs Afzal Pasha S/O Sri Shaik Mohiyuddin Sab on 19 April, 2010
Equivalent citations: 2010 (4) AIR KAR R 923, AIR 2011 (NOC) (SUPP.) 807 (KAR.)
Author: B.S.Patil
Bench: B.S.Patil
WP 10702/2010
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19?" DAY OF APRIL, 2010
BEFORE
THE HON'BLE MRJUSTICE B.S.PA'I'I_{,' ff "'
W.P.No. 10702/zolommgcpcj' " " C. '
BETWEEN :
'Syed Ashraff,
Aged 54 years,
Son of late Sri Abdul Razak,
Residing at Rojapura 4th Wa.1jd,
Doddabailapura Town,
Doddaballapur-56} 203, V .
Bar1ga10reRura1District» . PETITIONER
(By Sri Kesthu1'_N_% A
AND:
Afzal Pashad, A
Aged about 58'"'ye2VL'1's,_ _
Son 0f4;{S1'i Shaik Mohiyudciin Sab,
Residing a_t_Not.186, Qmtfldor,
Afr"? Cross, , _
pglygenic T¢éh41'1o:lV0'gies.
Telectixp. Cclfmy, ~ . V V
Hosahalli Maid. Rbad.
A A _Banga1ore<.;560 040. RESPONDENT
" " 5 1 f ~ gsy nsgsi S.A.Khadri Adv.)
A' petition is filed under Articles 226 & 227 of the
'-«Coristitution of India praying to quash the order dated"
2f2_.,G:2.2010 made on IA. No.19 in OS.N0t41/06, on the file of
"Civil Judge (Sr. D11.) Doddaballapur, as per Annexure--K and
«etc.
W13 1070212010
This petition coming on for Preliminary Hearing, tiis day.
the Court made the following: "
ORDER
1. Learned Counsel Sri the respondent.
2. Challenge in this Writ is Vto_'t11--:5 order dated 25.02.2010 passed in O.;$$:No.4;'1}?.'Oi€1.6 .fe3.gcting"fii"No.19 filed by the p1aintiff-petiti0ner herein tofirefer the signatures found on Exs.P;-"14"f?;.p:..P--11i._ to the handwriting expert for his op%.ni_on."'--« . "
3. suited the petitioner seeking specific perforrnaneeof the of sale dated 09.11.2001. This _ agreernent.is brought in evidence as EXP-1. The defendant has denied eineeution of this agreement. He had filed an app1'i'eation"'..ear1ie'r seeking to refer the signature found on _ Ex.Pii"}.. for -comparison with his signatures found on the .i}aka1ath"fi1ed by him and the written statement filed in the very The said application was allowed. The matter was if referred to the handwriting expert. The report of the " V handwriting expert is received. Both the parties have led their evidence. The matter is posted for arguments. At this stage, K WP10702/2010 the p1aintiff--petitioner filed one more app1ication."--..lA--19 requesting the Court to refer the signatures foundmon and P-l7 for comparison to the handwriting expeift. to the plaintiffwpetitioner. E3x.P--17 an pagre.en:'ievnti'iVsal.e if executed in favour of the very defendant another person. The said agree1'n_e'r1t beavrs the_s'ign'atu1*e of the defendant. The defendant has" hisvv--.signature on Ex.P--i7 in cross--exaniination;' ''
4. The cask; the defendant has deliberately his signature on the T' 'statement and therefore for ascefiainiiig the Ex.P--1 bears the signature of theA.d.efendan._t. itwas. necessary to send Exs.P--1 & P-17 for a if of the si'g"n'atures found, so as to identify whether signatures of the defendant.
--V 5. Court below has rejected the application holding that urdisputed signature was already sent for the opinion of the .' ha,ndV\}riting expert and there is no necessity to send it again. It 'has also found that under Section 73 of the Indian Evidence if Act, it will be open for the Court to compare and verify the signatures found in Exs.P--l 81 P-17. It is opined that the W WPlO702/2010 intention of the plaintiff was to drag on the proceedings")--.g'I'lie Court below has also opined that the defendant he had no objection to decree the suit and gave hlisiconserit for V' comparing the signatures in EXs.P-1 «Si P»!1'7«. ¢_
6. learned Counsel for thevpe«titioner._ 'submits report of the Commissioner is llaitered signatures which the defendant has 5n the xialcalath and the written statement anAd..i,gV'originated at an undisputed point ascertained only by sending in Ex.P»~17 originated at an be compared with the disputed signa'ture's._in P'-* " v Cou'nsel___fo.i" the defendant-respondent strongly Lgjenies. :VJE1'l'5:lv'fiA1Ct' the defendant had stated before the Court no objection to decree the suit.
It is unnecessary to state anything on the aforesaid flier the purpose of this case. Suffice to observe that as opined by the Court below, the Court below will be luentitled to compare the signatures in Exs.P-1 8: P-17 and form an independent opinion as to whether the signature found on %/ WP10702/2010 Ex.P--l is that of the defendant. In fact in the present case. the Court below has to undertake this exercise of comparisoirééofflthe signature found on Ex.P~l with that of the signatnre }____,.
Ex.P-- 1'] as the plaintiff has alleged' "that the has resorted to alter his signature while fil.in:g._i}akalat,h and statement. The 'signature of the.vi:"defendant in_naving"' V been admitted, it will not" be diiffienltllffor the'Co111*t5 below to compare the same independent opinion.
9. In that If'-do' not find any apparent illegality"inifthel.f'orde'rV:'passed Court below refusing to refer the two' & P-17 for comparison by handwmting eStp_ert.. below itself has to compare both . . titre sig{na.tt1re--S_and an independent opinion in the matter. observation. Writ petition is disposed of. Se/7-'ex JUDGE