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Karnataka High Court · body

2010 DIGILAW 553 (KAR)

Syed Ashraff v. Afzal Pasha

2010-04-19

B.S.PATIL

body2010
Judgment : Learned Counsel Sri S.A. Khadri takes notice for the respondent. 2. Challenge in this writ petition is to the order dated 25-2-2010 passed in O.S.No.41 of 2006 rejecting I.A.No.19 filed by the plaintiff-petitioner herein seeking to refer the signatures found on Exs.P.1 and P.17 produced by him to the handwriting expert for his opinion. 3. The suit is filed by the petitioner seeking specific performance of the agreement of sale dated 9-11-2001. This agreement is brought in evidence as Ex.P.1. The defendant has denied the execution of this agreement. He had filed an application earlier seeking to refer the signature found on Ex.P.1 for comparison with his signatures found on the vakalath filed by him and the written statement filed in the very suit. The said application was allowed. The matter was referred to the handwriting expert. The report of the handwriting expert is received. Both the parties have led their evidence. The matter is posted for arguments. At this stage, the plaintiff-petitioner filed one more application I.A.No.19 requesting the Court to refer the signatures found on Exs.P.1 and P.17 for comparison to the handwriting expert. According to the plaintiff-petitioner, Ex.P.17 is an agreement of sale executed in favour of the very defendant on 28-5-1997 by another person. The said agreement bears the signature of the defendant. The defendant has admitted signature on Ex.P.17 in cross-examination. 4. The case of the plaintiff is that the defendant has deliberately altered the signature while putting his signature on the vakalath and the written statement and therefore for ascertaining the truth as to whether Ex.P.1 bears the signature of the defendant, it was necessary to send Ex.P.1 and P.17 for comparison of the signatures found, so as to identify whether they are the signatures of the defendant. 5. The Court below has rejected the application holding that the disputed signature was already sent for the opinion of the handwriting expert and there is no necessity to send it again. It has also found that under Section 73 of the Indian Evidence Act, 1872, it will be open for the Court to compare and verify the signatures found in Exs.P.1 and P.17. It is opined that the intention of the plaintiff was to drag on the proceedings. It has also found that under Section 73 of the Indian Evidence Act, 1872, it will be open for the Court to compare and verify the signatures found in Exs.P.1 and P.17. It is opined that the intention of the plaintiff was to drag on the proceedings. The Court below has also opined that the defendant has stated that he had no objection to decree the suit and gave his consent for comparing the signatures in Exs.P.1 and P.17. 6. Learned Counsel for the petitioner submits that as the report of the Commissioner is based on altered signatures which the defendant has deliberately put on the vakalath and the written statement and as Ex.P.17 has originated at an undisputed point of time, the truth could be ascertained only by sending the admitted signature found in Ex.P.17 originated at an undisputed point of time to be compared with the disputed signatures in Ex.P.1. 7. Learned Counsel for the defendant-respondent strongly denies the fact that the defendant had stated before the Court below that he had no objection to decree the suit. 8. It is unnecessary to state anything on the aforesaid aspect for the purpose of this case. Suffice to observe that as rightly opined by the Court below, the Court below will be entitled to compare the signatures in Exs.P.1 and P.17 and from an independent opinion as to whether the signature found on Ex.P.1 is that of the defendant. In fact in the present case, the Court below has to undertaken this exercise of comparison of the signature found on Ex.P.1 with that of the signature found on Ex.P.17 as the plaintiff has alleged that the defendant has resorted to alter his signature while filing vakalath and written statement. The signature of the defendant in Ex.P.17 having been admitted, it will not be difficult for the Court below to compare the same with Ex.P.1 and form an independent opinion. 9. In that view of the matter, I do not find any apparent illegality in the order passed by the Court below refusing to refer the two signatures in Exs.P.1 and P.17 for comparison by handwriting expert. The Court below itself has to compare both the signatures and form an independent opinion in the matter. 10. With the above observation, writ petition is disposed of.