Karnataka High Court
Smt. Suman W/O. Suresh Palankar vs Sri. Vinayak S/O. Nagappa Palankar on 8 August, 2018
Author: G.Narendar
Bench: G. Narendar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE G. NARENDAR
WRIT PETITION No.110298/2017 (GM-CPC)
BETWEEN:
SMT. SUMAN W/O. SURESH PALANKAR,
AGE:58 YEARS, OCC:HOUSEHOLD,
R/O. H.NO.49, NAGAPRASAD BUILDING,
SHIVAPUR COLONY, HOSAYELLAPUR,
DHARWAD-580001. ... PETITIONER
(BY SRI ANANTH HEGDE, ADVOCATE)
AND:
1. SRI. VINAYAK S/O. NAGAPPA PALANKAR
AGE:86 YEARS, OCC:AGRICULTURIST,
R/O. SHIVAPUR COLONY,
HOSAYELLAPUR, DHARWAD.
2. SUCHITA D/O. SURESH PALANKAR,
AGE:33 YEARS, OCC:HOUSEHOLD,
3. SANTOSH S/O. SURESH PALANKAR,
AGE:31 YEARS, OCC:HOUSEHOLD,
R/O. H.NO.49, NAGAPRASAD BUILDING,
SHIVAPUR COLONY, HOSAYELLAPUR,
DHARWAD-580001. ...RESPONDENTS
(BY SRI S.R.HEGDE, ADVOCATE FOR C/R1)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED:04.10.2017 PASSED ON I.A.NO.27 IN
O.S.NO.805/2009, ON THE FILE OF 1ST ADDITIONAL CIVIL
JUDGE AND JMFC, DHARWAD THE COPY OF WHICH HAS BEEN
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PRODUCED HEREWITH AND MARKED AS ANNEXURE-A AND
ETC.,
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the learned counsel for the respondents.
2. Though the petition is listed for hearing on interlocutory applications, with the consent of the counsels on both sides, the petition is taken up for disposal in view of the short point involved.
3. The petitioner is before this Court being aggrieved by the order dated 04.10.2017 rendered on IA-XXVII preferred under Order XXVI Rule 10-A read with Section 151 of the CPC praying for referring the signatures found on Ex.P.6 for scientific investigation on the premise that the 1st defendant/petitioner herein has not executed the said document and the said document is a concocted one.
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4. The trial Court while considering the application has held that the petitioner had preferred a similar application on an earlier instance and the same came to be rejected and hence the present application is not maintainable. It has also rejected the application on the additional ground that the 1st defendant/petitioner has admitted the execution of the document.
5. Learned counsel for the petitioner would draw the attention of the Court to the written statement preferred by the petitioner vide Annexure-C to the writ petition and would further invite the attention of the Court to page No.32 internal page No.6 at paragraph 14, wherein the petitioner has admitted to setting her hand on blank white paper and in respect of the sale agreement which is found to be on a stamp paper, she has categorically denied executing the said deed and has in fact alleged that the document is a concoction and is a bogus document. The trial Court has mischievously relied on :4: the earlier statement of the petitioner about her having set her hands to the blank white papers as execution of the sale agreement at Ex.P.6 and hence it found convenient to reject the application. The reasoning by the trial Court cannot be sustained in the light of the specific and categorical pleading in the written statement in paragraph 14 of the written statement wherein the unnumbered paragraph on the internal page No.6 reads as follows:
" Further it is submitted that defendant no.1 as never approached to the plaintiff for financial help and also not received any consideration amount by the plaintiff. That the defendant no.1 when not received any amount by the plaintiff the question of executing the agreement of sale deed doesn't arise. That the defendant no.1 never executed any agreement of sale on bond papers and never put her signature on bond papers in the presence of witnesses and also not delivered the possession to plaintiff the said the agreement of sale produced by :5: the plaintiff is created one and bogus document. It is submitted that defendant no.1 is in physical possession of the suit property from the date of purchase till execution of gift deed to the defendant no.2 and 3. That the possession of suit property has been handed over to the defendant no.2 and 3 by virtue of gift deed executed by the defendant no.1 and till today defendant no.2 and 3 are in the possession of the suit property."
6. On a bare reading of the said paragraph, it is apparent that there is stout denial of the execution. Hence, the reasoning of the trial Court that the 1st defendant/petitioner has admitted execution of Ex.P.6 not only fallacious but misleading. Further, the trial Court should have kept in mind the fact that valuable property rights are involved and also the allegation that the plaintiff has resorted to coercion and physical force to make the 1st defendant/petitioner to set her hands on the "blank white papers". The trial Court ought to have :6: examined and disposed of the application keeping in mind the factual aspect of the case. The order impugned is vitiated by non-application of mind.
7. Learned counsel for the respondents would submit that the suit is of the year 2009 and the conclusion of the suit is being postponed on one ground or the other and would pray that there be a direction to the trial Court to expedite the hearing and dispose of the same. In view of the above finding and keeping in view the date of institution of the suit, the following order:
i) the writ petition is allowed,
ii) the order dated 04.10.2017 passed on
IA-XXVII filed under Order XXVI Rule 10-A is set aside and IA-XXVII is hereby allowed,
iii) the trial Court shall refer the document Ex.P.6 for scientific investigation,
iv) the trial Court shall endeavour to hear and dispose of the case within six months from :7: the date of receipt of the report under Order XXVI Rule 10-A of the CPC.
In view of the disposal of the suit, IA-1/2018 does not survive for consideration.
There shall be no order as to costs.
Sd/-
JUDGE Jm/-