SMT. KAMALA vs. SMT. V.SHARADA

IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 14TH DAY OF FEBRUARY, 2020

BEFORE

THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO. 1661 OF 2020 (GM-CPC)

BETWEEN:

SMT. KAMALA W/O LATE B RAMA BHAT, SINCE DECEASED BY LRS PETITIONER NO.1 TO 3 ARE MENTIONED HEREUNDER:

… PETITIONERS

(BY SRI. G KRISHNA MURHTY, SENIOR COUNSEL FOR A/W SRI. PARIKSHIT S S, ADVOCATE)

AND:

SMT. V.SHARADA, W/O LATE ISWARACHANDRA, AGED ABOUT 55 YEARS, R/AT GROUND FLOOR DOOR NO.132, VRINDAVANA, 21ST CROSS, A BLOCK, III STAGE, VIJAYANAGAR, MYSURU-570001.

… RESPONDENT (BY SRI. MANMOHAN P N, ADVOCTE FOR C/R)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 10.12.2019 DISMISSING IA NO.35 THE APPLICATION FILED UNDER ORDER XXVI RULE 9 R/W SECTION 151 OF THE CPC IN O.S.NO.1135/2006 PASSED BY THE IV ADDL. SENIOR CIVIL JUDGE AND JMFC MYSURU ANNEXURE-J AND CONSEQUENTLY ALLOW IA NO.35 ANNEXURE-G APPLICATION FILED UNDER ORDER XXVI RULE 9 OF CPC FOR SENDING THE DOUCMENTS FOR COMPARSION OF SIGNATURES TO AN EXPERT BY APPOINTING COURT COMMISSIONER.

THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

Petitioners being the defendants in a partition suit in O.S.No.1135/2006 are invoking the writ jurisdiction of this Court for assailing the order dated 10.12.2019 whereby their application in IA No.35 filed under Order XXVI Rule 9 r/w Section 151 of CPC, 1908, having been rejected by the learned IV Additional Senior Civil Judge, Mysore, a copy whereof is at Annexure-J, the request for sending the subject document for forensic examination has been turned down.

a) the question before the Court below was whether a particular document which purports to be a Tax Return filed by the deceased husband of the respondent-plaintiff pursuant to Notice u/s 143 of the Income Tax Act, 1961 does contain his original signature; such a question may not be normally answered by the judges, howsoever eminent they may be, sans the opinion of an expert in the field, vide Apex Court decision in the case of O BHARATHAN VS. K SUDHAKARAN AND ANOTHER, (1996) 2 SCC 704;

b) the reasoning in the impugned order is not consistent with the inner voice of the decision referred to above and therefore, the same is infected with infirmities warranting indulgence of Writ Court for setting the same right; the other reason for granting relief to the petitioner is

that the intended forensic examination would not in any way prejudice the case of respondent-plaintiff; if the Report of the Handwriting Expert comes out, it may help the respondent as well; if the report is adverse to the interest of the respondent, it is open to her to register her Objections thereto which the learned judge of the Court bellow will objectively consider; and,

c) the contention vehemently put forth by the respondent – plaintiff that the document in question does not bear the seal of the jurisdictional Income Tax Officer and therefore, till after it is established that the said document is the counterpart of the one filed in the Income Tax Office, the application of the kind cannot be entertained appears to be too farfetched; the question is essentially the one relating to genuineness of the signature which purports to be of the deceased husband of the respondent-plaintiff; whether the Return/Reply was filed u/s 143 of the Act before the jurisdictional Income Tax Office is irrelevant for consideration as long as the document in question arguably has the potential to throw light on the issues involved in the case, subject to the same being proved.

In the above circumstances, this writ petition succeeds; the impugned order is invalidated; petitioners’ subject application having been favoured, a direction issues to the learned judge of Court below to process the matter further; the subject document along with any other relevant documents be forwarded to the Forensic Science Laboratory for examination and secure the expert opinion within a time bound manner, at the cost of petitioners herein.

It is made clear that this Court has not considered the contention of the respondent-plaintiff as to whether the subject document or its counterpart was submitted to the Income Tax Office or not. The Court below may advert to this aspect of the matter if it finds it relevant.

All contentions of the parties are kept open.

No costs.

Sd/- JUDGE

Bsv