RUDRAYYA S/O. VEERAYYA CHILURMATH vs. SHASHIBHUSHANSWAMI S/O. BASAVANNEYYA HIREMATH

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 3RD DAY OF MARCH, 2017 BEFORE THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY WRIT PETITION No. 101943 of 2017 (GM-CPC) BETWEEN: Sri.Rudrayya S/o. Veerayya Chillurmath, Age:71 years, Occupation:Agriculture Resident of Mallur, Tq:Byadgi Dist:Haveri ... Petitioner (By Sri. N. J. Appannanavar for Sri. Laxman T. Mantagani, Advocate.) And Shashibhushanswami S/o. Basavanneyya Hiremath, Since deceased by his LR’s Smt.Vanjakashawwa W/o. Shashibushansway Hiremath Since deceased by her LR’s 1. Veerayya S/o. Shashibhushansway Hiremath Age:52 years, Occupation:Mechanic Resident of KSRTC Chitradurga Unit Taluk. & Dist:Chitradurga 2. Sri Basavanneyya @ Ajjayya S/o. Shashibhushansway Hiremath Age: 47 years, Occupation: Income Tax, Resident of. H.No. 427, Pachakshari Nagar, Navanagar, Hubballi Tq:Hubballi,

: 2 : Dist:Dharwad. 3. Smt.Jagajjanani W/o. Veerayya Aparayya Age:60 Years, Occupation:Household Work Resident of Renuka Layout, Near Pragati Krishna Grameen Bank, Kottur, Tq:Kudligi Dist:Bellary 4. Smt.Geeta W/o. Shivajogayya Karaveermath, Age:55 Years, Occupation:Household Work Resident of Near Shishu Vihar, Jolad Oni Hubballi Tq:Hubballi Dist:Dharwad 5. Smt.Nalina W/o. Gurupadayya Toragallamath age:53 years, Occupation: Household work Resident of Pavan park, near Bendre Bhavan Sadhanakeri Dharwad Tq & Dist:Dharwad. 6. Avinash S/o. Shadaksharayya Hiremath Age:28 Years, Occupation:Student Resident of H.No. 427, Panchakshari Nagar, Navanagar Hubballi Tq:Hubballi Dist:Dharwad 7. Akshata d/o. Shadaksharayya Hiremath Age:26 years, Occupation:student Resident of H.No. 427,Panchakshari Nagar, Navanagar Hubballi Tq:Hubballi Dist:Dharwad ... Respondents This petition is filed under Articles 226 and 227 of the Constitution of India, 1950, praying to set aside the impugned order passed by the court of Civil Judge, Byadgi on IA No.9 in O.S.No.383/2010 dated:16.02.2017 vide Annexure-'E'.

: 3 : This petition coming on for Preliminary hearing, this day, the Court made the following: O R D E R Heard the learned counsel for the petitioner. 2. The petitioner is the plaintiff in a suit for specific performance. It transpires that the defendant died during the pendency of the suit. He had denied the agreement and the signature on the agreement and his legal representatives have now come on record and have taken up a similar contention that the agreement is a forged document and a false one. It is in this background that the petitioner had sought for reference of the document to an expert in terms of Order XXVI Rule 10A the Code of Civil Procedure, 1908. The Trial Court has held that the document has been already marked in evidence and the suit is of some vintage and that it could cause delay to procrastinate the matter if it is referred to an expert, and has rejected the application.

: 4 : 3. The learned counsel for the petitioner seeks to place reliance on two decisions of this court namely in the case of H. Devaraju vs. H.R. Halappa 1999 (5) KLJ 124 and in the case of P.T. Shylesh and others vs. Ambikapathi ILR 2009 Karnataka 2911, wherein the learned Single Judges of this court have opined that it would be appropriate to seek the opinion of an expert in cases where there is doubt as to the signatures on documents and the court itself should not sit in judgment of the genuineness or otherwise of disputed documents and in any event, the expert’s report is always subject to objection by the other party and the expert can also be offered for cross-examination to test the correctness of the report and further, the court is not always bound by the expert’s opinion and it is only an aid to enable the court to arrive at a just decision. 4. Therefore, it is the plaintiff’s own suit and it would be the last intention of the plaintiff to procrastinate the trial. It was a genuine request made and it ought to have been allowed, since there is dispute about the genuine document and this can surely be established by an expert opinion.

: 5 : 5. However, in the opinion of this bench, a reading of Order XXVI Rule 10A CPC would clearly indicate that it is an enabling provision and the court is not bound to refer documents for an expert’s opinion at the instance of a party to the suit. It is always the discretion of the court, since it is the court which will ultimately decide notwithstanding the expert’s report if any being placed on record as to whether it accepts the signature as being genuine. Therefore, in the present case on hand, if doubt should arise in the view of the court on a comparison of the admitted signature and the disputed signature, it is always open for the court before pronouncement of the judgment, to refer it to an expert for its opinion and to proceed further. The delay if any caused by such an exercise is inevitable and on that count, to reject the prayer or not to send the disputed document for an expert’s opinion, would leave a loose end which should be avoided. Therefore, it is left to the court below to refer the document for an expert’s opinion if

: 6 : there is any doubt in arriving at its finding as to the genuineness or otherwise of the signature. With that observation, the petition stands disposed of. Sd/- JUDGE KS