IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 WP(C).No. 23621 of 2008(K) -------------------------- AGAINST THE ORDER IN IA.156/08 IN OS.627/1996 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: ---------------------- RAJENDRAN, S/O.RAJAGOPALA UDAYAR, RESIDING AT CHEMPADAM KALAM, KARINGARAPULLY AMSOM, PALAKKAD TALUK. BY ADV. SRI.V.CHITAMBARESH (SR.) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENTS: ------------------------- 1. SENTHIL KUMAR, S/O.LATE DANIKACHALAM UDAYAR. 2. SETHUMADHAVAN, S/O.LATE DANIKACHALAM UDAYAR. 3. MANJU, D/O.LATE DANIKACHALAM UDAYAR 4. ANJU, D/O.LATE DANIKACHALAM UDAYAR 5. CHENTHAMARA, WIDOW OF DANIKACHALAM UDAYAR. ALL ARE RESIDING AT CHEMPADAM KALAM, KRINGARAPULLY AMSOM, PALAKKAD TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 23621 OF 2008 ------------------------------------------ Dated this the 6th day of August, 2008 JUDGMENT Petitioner is the plaintiff in O.S.627 of 1996 on the file of Sub Court, Palakkad. This petition is filed under Article 227 of Constitution of India challenging Ext.P2 order passed by the Sub Judge in I.A.156 of 2008, an application filed by the petitioner to send the disputed document to another expert. Learned Sub Judge, under Ext.P2 order, dismissed the application finding that when the document was forwarded to the Finger Print Bureau, Thiruvananthapuram, under Ext.P1 report, Finger Print Expert returned the document with photographic enlargements stating that the thumb impression in the disputed as well as admitted document are blurred, faint and do not contain sufficient number of ridge characteristics to give an opinion on comparison of the thumb impression and therefore no purpose will be served by sending the document to another expert as sought for by the petitioner. 2. Learned senior counsel appearing for petitioner and learned counsel appearing for second respondent, who appeared by lodging a caveat, were heard. WP(C)23621/08 2 3. The learned senior counsel relying on the decision of the Apex Court in Thiruvengada Pillai v. Navaneethammal (2008 (2) KLT 267) argued that when there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague and smudgy and not clear making it difficult for comparison, Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions and in such a case report of an expert is necessary. Learned counsel argued that even if the expert at the Fingerprint Bureau could not identify the property due to the blurred and faint nature of the thumb impression, it does not mean that another expert cannot compare the thumb impressions and give opinion on the question whether the thumb impression is that of Sethu Udayar or not and learned Sub Judge should have allowed the application. Learned counsel appearing for the first respondent argued that when Ext.P1 report shows that thumb impressions are blurred and faint and do not have sufficient number of ridge characteristics to give an opinion, there is no necessity to forward the documents to another expert. 4. As rightly pointed out by the learned senior counsel, WP(C)23621/08 3 the trial Court forwarded the disputed document with the document containing admitted thumb impression of deceased Sethu Udayar to the Finger Print Expert, finding that the report of an expert is necessary to decide the disputed fact. The fact that the expert at the Fingerprint Bureau expressed inability to compare the thumb impressions and give an opinion on comparison does not mean that no other expert could give an opinion on comparison of the thumb impressions. In such circumstances learned Sub Judge should have granted an opportunity to the petitioner to get the disputed document compared with the admitted document. In such circumstances Ext.P2 order is quashed. Learned Sub Judge is directed to forward the disputed document along with the document which contains the admitted thumb impression of deceased Sethu Udayar, to an expert who is qualified to give opinion. Both the parties are at liberty to file a panel of names of experts and the learned Sub Judge is directed to forward the documents to one of the experts. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-