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Karnataka High Court · body

2014 DIGILAW 1086 (KAR)

L. v. Rajesh VS Naveen Anjum

2014-12-12

B.MANOHAR

body2014
ORDER Petitioner is the plaintiff in O.S.No.28/2009 on the file of the IV Additional Senior Civil Judge, Mysore. Being aggrieved by the order dated 22-09-2012 made on I.A.No.15 filed under Order 26 Rule 10(A) of CPC, the petitioner has filed this writ petition. 2. The petitioner filed a suit seeking for specific performance of the agreement of sale dated 30-06-2008 and to direct the defendants to receive the balance sale consideration and to execute the sale deed or in the alternative refund the earnest money with damages. In the plaint, it was contended that husband of the first defendant and father of defendant No.2 Late Sri.Mir Ameenulla Khuraishi executed an agreement of sale in respect of the suit schedule property on 30-06-2008 for a sale consideration of Rs.27,00,000/-. As on the date of agreement, he received a sum of Rs.20,00,000/- and the balance sale consideration was agreed to be paid at the time of registration of the sale deed i.e., within a period of four months from the date of agreement of sale. However, the said Mir Ameenulla Khuraishi died on 04-08-2008. Though the defendants were aware of execution of the agreement of sale, they refused to execute the sale deed by receiving the balance sale consideration. The plaintiff issued legal notice to the defendants, for which they gave untenable reply. Hence, the plaintiff filed the suit for specific performance of the contract. 3. In pursuance of the notice issued by the Trial Court, the defendants entered appearance and filed written statement contending that the said Mir Ameenulla Khuraishi had not entered into an agreement of sale dated 30-06-2008 and that the alleged agreement of sale is a forged and fabricated document and sought for dismissal of the suit. 4. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. The petitioner got examined himself as P.W.1, and examined the scribe of the agreement of sale and also one of the witnesses to prove the execution of the agreement of sale. The first defendant got examined herself as D.W.1 and denied the execution of the agreement of sale and also the signature on the said document. She further denied the signatures of her husband on Ex.P6 and Ex.P9. The first defendant got examined herself as D.W.1 and denied the execution of the agreement of sale and also the signature on the said document. She further denied the signatures of her husband on Ex.P6 and Ex.P9. Further, during the course of examination of the first defendant, she got marked Ex.D1 which is said to be the FSL report in respect of signature of her husband on the agreement of sale. However, the Expert who had given the report was not examined nor an opportunity was given to the petitioner to cross-examine the said Expert. In view of that, the petitioner made an application I.A.No.15 under order 26 Rule 10(A) of CPC to appoint a Court Commissioner who is a competent Hand Writing Expert to compare the signatures of deceased Mir Ameenulla Khuraishi on the agreement of sale and Ex.P6 to Ex.P9 and to give a report. 5. The contesting respondents had filed objections contending that the signatures on the agreement of sale and Ex.P6 to Ex.P9 have already been referred to the Government Forensic Science Laboratory and the Expert had given an opinion on the agreement of sale and other documents. Hence, the question of referring the signatures once again to the Hand Writing expert does not arise and sought for dismissal of the application. 6. The Trial Court after considering the arguments addressed by both the parties held that in view of denial of execution of the agreement of sale, the burden is on the plaintiff to prove the agreement of sale. The plaintiff had examined the scribe of the agreement of sale and also one of the attesting witnesses. The first defendant examined herself and got marked the FSL Report as Ex.D1. Hence, once again referring the signature on the agreement of sale to the Hand Writing Expert does not arise and hence rejected I.A.No.15 as per the order impugned in this writ petition. Being aggrieved by the said order, the petitioner has preferred this writ petition. 7. Smt. M.D. Anuradha Urs, learned advocate appearing for the petitioner contended that the order passed by the Trial Court rejecting the application to refer the signature to Hand Writing Expert is contrary to law. The burden of proving the agreement of sale is on the petitioner. Being aggrieved by the said order, the petitioner has preferred this writ petition. 7. Smt. M.D. Anuradha Urs, learned advocate appearing for the petitioner contended that the order passed by the Trial Court rejecting the application to refer the signature to Hand Writing Expert is contrary to law. The burden of proving the agreement of sale is on the petitioner. The petitioner had discharged the said burden by examining the scribe of the agreement of sale and also witnesses who are none other than the two senior advocates from the Bar. During the course of examination of the first defendant, she had marked FSL report as Ex.D1. The person who had given the FSL report was not examined and no opportunity was given to the plaintiff to cross-examine the said person. Hence, the said document cannot be looked into. In view of that, the plaintiff filed I.A.No.15 under Order 26 Rule 10(A) of CPC to refer the signature on the agreement of sale to the Hand Writing Expert to compare the same with the signatures in Ex.P6 to Ex.P9. The said application was objected by the respondents. The Trial Court, without appreciating the contentions raised by the petitioner in the application rejected the same, which is contrary to law. In support of her contention, learned counsel for the petitioner relied upon a decision of the Hon’ble Supreme Court reported in AIR 1999 SC 3318 in the case of STATE OF H.P. v/s JAI LAL AND OTHERS and sought for allowing the writ petition. 8. On the other hand, Sri.B.S.Gurudatt, learned counsel appearing for the respondents argued in support of the order passed by the Trial Court and contended that the petitioner ought to have examined the Expert who had given the report in respect of signature on the agreement of sale. The Government Forensic Science Laboratory is an independent agency, the report given by the said agency is a public document and the same cannot be brushed aside. There is no infirmity or irregularity in the order passed by the Trial Court and sought for dismissal of the writ petition. 9. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records. 10. The petitioner filed a suit for specific performance of agreement of sale dated 30-06-2008 said to have been executed by Late Mir Ameenulla Khuraishi. 9. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records. 10. The petitioner filed a suit for specific performance of agreement of sale dated 30-06-2008 said to have been executed by Late Mir Ameenulla Khuraishi. However, the defendants in the suit denied the execution of agreement of sale and the signature on the said agreement contending that it is a forged and concocted document. The plaintiff, in order to prove her case examined the scribe of the said agreement of sale and one of the attesting witnesses and also marked Ex.P6 to Ex.P9, which are the signatures of Late Mir Ameenulla Khuraishi on some other documents. The first defendant in her cross-examination denied the signature of her husband on agreement of sale and also on Ex.P6 to Ex.P9. During the course of her examination, she had marked Ex.D1, which is the FSL report of the Government Forensic Science Laboratory in respect of the signature on the agreement of sale. The case of the plaintiff is that the defendant has not examined the Expert who had given Ex.D.1 and also that how she got the report from the Expert is not made known. Further the plaintiff was not permitted to cross-examine the said expert. Unless the Expert who had given the report is examined and cross-examined, the expert report cannot be looked into. In the cross-examination it was alleged that the person who had given the report was a close relative of the defendants and the defendants maneuvered the Expert to get the said report. In view of that, the application I.A.No.15 was filed to appoint a Court Commissioner to examine the signature on the agreement of sale and to compare the same with Ex.P6 to Ex.P9. The Trial Court rejected the application on the ground that the petitioner had already examined the scribe and the attesting witness of the said document and the disputed signature was already referred to an Expert of the Government Forensic Science Laboratory and he had already given the report. Hence, referring the signature once gain to the Hand Writing Expert does not arise. 11. The reasoning assigned by the Trial Court to reject the application is contrary to law. Hence, referring the signature once gain to the Hand Writing Expert does not arise. 11. The reasoning assigned by the Trial Court to reject the application is contrary to law. The Trial court has not referred the signature on the agreement of sale to the Hand Writing Expert to compare with the undisputed signatures. But, in a criminal case lodged by the defendants, the Police themselves had referred the signature to the Expert and the said Expert had given the report. The specific allegation of the plaintiff is that the person who had given the report is a relative of the defendants and the defendants had maneuvered the said Expert and obtained the report. However, the defendants denied that allegation. Apart from that the person who had given the report has not been examined by the defendants nor an opportunity was given to the plaintiff to cross-examine the said Expert. In the absence of the same, the report cannot be looked into. However, the reasoning of the Trial Court that the expert had already given the report and the question of referring the signature to the Hand Writing Expert once again does not arise is contrary to law. Unless the person who had given the report is examined and cross-examined by the other side, the said document cannot be looked into. The Hon’ble Supreme Court in the judgment referred to above clearly held as under: “The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination. This Court in case of HAZI MOHAMMED IKRAMUL HAQUE v/s STATE OF WEST BENGAL, AIR 1959 SC 488 concurred with the finding of the High Court in not placing any reliance upon the evidence of the expert witness on the ground that his evidence was merely an opinion unsupported by any reasons.” 12. In the instant case, the Expert who had given FSL report on the signature of the deceased Mir Ameenulla Khuraishi is not been examined or cross-examined by the contesting party. Hence no reliance can be placed on the said expert opinion. In the instant case, the Expert who had given FSL report on the signature of the deceased Mir Ameenulla Khuraishi is not been examined or cross-examined by the contesting party. Hence no reliance can be placed on the said expert opinion. In view of that, the application was filed to appoint a competent Hand Writing Expert to examine the signature on the agreement of sale and other documents i.e. signatures on Driving License, possession certificate issued from the City Improvement Trust Board, Mysore and in the agreement of Mortgage dated 15-8-1999. When the contesting party denied execution of the sale deed and also disputes the signature on the said document, the burden shifts on the plaintiff to prove the said document by examining the scribe and attesting witnesses. In the instant case, the plaintiff had discharged the said burden. Unless the Expert who had issued the FSL report is examined and cross-examined by the other side, the expert report cannot be looked into. Hence, the order passed by the Trial Court cannot be sustained. In the absence of the expert report, the Court has to refer the signature on the agreement of sale to the Hand Writing Expert to compare the same with the signatures on the other documents. Hence the order passed by the Trial Court rejecting the application cannot be sustained. Accordingly, I pass the following: ORDER The writ petition is allowed. The order dated 22-9-2012 made on I.A.No.15 is set aside. The Trial Court is directed to refer the signature on the agreement of sale to a competent Hand Writing Expert to compare the same with the signatures on Ex.P6 to Ex.P9.