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2013 DIGILAW 334 (KAR)

Basappa Ishwarappa Bilebhavi v. Mahantesh

2013-03-15

D.V.SHYLENDRA KUMAR

body2013
JUDGMENT 1. Letter dated 05.01.2013 is from learned Senior Civil Judge, Muddebihal seeking for extension of time for the disposal of the suit in O.S.No.13/2011 pending on its file, which had earlier been ordered to be disposed of expeditiously as per the order dated 09.07.2012 passed by this Court in W.P.No.81629/2012. 2. This Court having stayed the further proceedings in the original suit as per the interim order passed in W.P.No.100015/2013, that has come in the way of disposal of the suit. 3. Writ petition No.100015/2013 is also linked to Writ Petition No.81629/2012, which is placed below. 4. Writ petition No.100015/2013 is directed against the order dated 04.12.2012 passed by the learned Trial Judge in the very suit rejecting I.A.No.17 filed under Order 26 Rule 10A of Code of Civil Procedure, 1908, seeking for sending an admitted signature of the defendant for comparison and opinion with the signature found on the agreement for conveying property by the defendant in favour of the plaintiff in the suit being one for specific performance of this agreement and that the defendant having died, this step is very necessary for the plaintiff to prove the case, but the application being opposed by the defendant, learned Trial Judge dismissed the application. 5. The suit though carries the present number O.S.No.13/2011, it is originally instituted in the year 1994 and that the original number O.S.No.61/1994 has came to be renumbered on its coming to the present Court. 6. Mr. Ameet Kumar Deshpande, learned counsel appearing for the petitioner submits that it is very essential for the plaintiff to prove the signature of the defendant and such person being no more, one way of getting it proved was a comparison with the admitted signature and therefore, the learned Trial Judge ought to have allowed the application etc. 7. On the other hand, Mr. Harshavardhan R. Malipatil, learned counsel appearing for Respondent Nos.1, 3 to 8 submits that the learned Trial Judge has dismissed the application on two grounds, firstly that there is belated application at the time of argument being heard in the main matter and secondly, the so called admitted signature was not admitted but was in fact disputed. Therefore, comparison of such signature with the signature on the document was of no consequence etc. 8. Therefore, comparison of such signature with the signature on the document was of no consequence etc. 8. It is not a matter of right for the plaintiff to come up with applications, at any point of time, more so, seeking for a scientific enquiry and report through a Court Commissioner, at the stage when the matter is listed for argument. 9. In fact, it is this Court which had directed the Trial Court to dispose of the suit expeditiously in the order passed in the earlier round of writ litigation by the very writ petitioner and it is the very writ petitioner who has come up with an application thereafter also, which has held up the disposal of the suit. 10. Be that as it may, I find there is absolutely no merit for interference with the impugned order passed by the learned Trial Judge on I.A.No.17 rejecting the application under Order 26 Rule 10A of CPC. It is therefore, this writ petition is dismissed vacating the interim order. 11. In view of the letter from the learned Senior Civil Judge, Muddebihal in Writ Petition No.81629/2012, time for disposal of the suit is extended by four months from today as now that the matter is set down for arguments. Letter ordered accordingly.