IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 18TH JULY 2007 / 27TH ASHADHA 1929 WP(C).No. 22641 of 2006(U) {I.A.NO.384/2006 IN O.S.25/2005 ON THE FILE OF THE MUNSIFF-MAGISTRATE, PAYYOLI} PETITIONER: KOYAMBRATH ABDULLA HAJI, S/O. MOIDEEN, AGED 73 YRS, RESIDING AT MUNNOOTTANTAVIDA HOUSE, MELADI AMSOM AND DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN & SRI.R.PARTHASARATHY RESPONDENTS: 1. PUTHIYOTTUPARAMBATH MARIYOMMA, D/O. USSAIN, AGED 61 YRS, SWASTHAM, RESIDING AT THEKKAYIL, MELADI AMSOM, KANNAMKULAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 2. ISMAYIL, S/O. MAMMU HAJI, AGED 40 YRS, BUSINESS, RESIDING AT THEKKAYIL, MELADI AMSOM, KANNAMKULAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 3. THEKKAYIL AYISHA, D/O. MAMMU HAJI, AGED 37 YRS, SWASTHAM, RESIDING AT PILAKULATHIL HOUSE, MEPPAYYUR AMSOM, KEEZHPAYYOOR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. WP(C).No. 22641 of 2006 :: 2 :: 4. ABDURAHIMAN, S/O. MAMMU HAJI, AGED 35 YRS, BUSINESS, RESIDING AT THEKKAYIL HOUSE, MELADI AMSOM, KANNAMKULAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. 5. AZEEZ, S/O. MAMMU HAJI, AGED 32 YRS, BUSINESS, RESIDING AT THEKKAYIL HOUSE, MELADI AMSOM, KANNAMKULAM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL SMT.RAKHI K.KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Though this writ petition is posted for hearing today, since the counsel for the petitioner is absent, the writ petition will stand dismissed only for default. Sd/- (PIUS C.KURIAKOSE) 18.7.2007. JUDGE sk/ //true copy// P.S. To Judge PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 22641 OF 2006 ----------------------------------------------- Dated this the 29th day of January, 2009 J U D G M E N T The plaintiff in a suit for partition has filed this writ petition under Article 227 of the Constitution of India challenging Ext.P2 order passed by the learned Munsiff. The petitioner's claim for partition was resisted by the respondents who contended that the plaintiff had executed a deed of power of attorney in favour of the 5th defendant in the suit who transferred the plaintiff's rights based on the said deed in favour of the 4th defendant. The writ petitioner plaintiff denied the execution of the deed of power of attorney and the learned Munsiff referred the matter to an expert. The expert found that the deed of power of attorney was duly executed by the writ petitioner. At that juncture the petitioner filed IA.384/06 invoking Order 26 Rules 10, 10-A and 12 of the Code of Civil Procedure maintaining that the petitioner had never executed any deed of power of attorney as alleged by the contesting defendants. Ext.P1 is copy of the above I.A. and the affidavit in support of the same. It is on that I.A. that the impugned order Ext.P2 was passed by the learned Munsiff. The petitioner has produced a copy of the report dated 18-6-2006 submitted by the expert Sri.K.Khan Sahib, Finger Print and WP(C)N0. 22641/06 -2- Handwriting Analysis Bureau, Calicut. Ext.P4 is copy of the admitted and disputed signatures which were examined by the above expert for preparing Ext.P3. Ext.P5 is a true copy of the admitted and disputed thumb impressions of the petitioners which were also examined by the expert while preparing Ext.P3. The petitioner concedes that the name of the expert who submitted Ext.P3 was also included in the panel of experts which was submitted by the writ petitioner before the court. But the petitioner submits that he had no notice that the name of the said expert was sullied at the time when his name was also included in the panel. The petitioner alleges that it was without taking stock of Order 26 Rules 10, 10-A and 12 of the Code of Civil Procedure which is different from Rule 14 in the context of the judgment of this Court in Subramonian v. K.S.E.Board, 1987(1) KLT 355 that the learned Munsiff dismissed the petition filed by the plaintiff. Impugning Ext.P2 on various grounds this writ petition has been filed seeking the following relief: “Set aside Ext. P2 order and direct the Munsiff, Payyoli to get a second report from the expert with despatch for further enquiry in the suit.” I have heard the submissions of Mr. B.Krishnan, learned counsel for the petitioner and those of Sri.Pulikkool Aboobacker, learned counsel WP(C)N0. 22641/06 -3- for respondents. Mr.Krishnan would draw my attention to Rules 10, 10-A, 12 and 14 of Order 26 of the Code of Civil Procedure and would point out that in terms of Rule 10 and 10-A of Order 26, the court was always empowered to make further enquiry into the matter without setting aside the original report Ext.P3 submitted by the expert. The learned counsel highlighted the distinction between Rule 14 and Rules 10 and 10-A of Order 26. My attention was drawn by the learned counsel to the judgment of this Court in Dr.Subramonian v. K.S.E.Board, 1987(1) KLT 355 and submitted that a distinction should always be noticed between Rule 14 and Rules 10 and 10-A. Rules 10 and 10-A enables the court to order further enquiry without setting aside the earlier report. The judgment of the Division Bench in Swami Premananda Bharathi v. Swami Yogananda Bharathi, 1985 KLT 144 was a case where it was the power under Rule 14 of Order 26 which was invoked. Mr.Krishnan referred in this context another judgment of Justice M.P.Menon in Hydrose v. Govindankutty, 1981 KLT 360. The submissions of Mr.Krishnan were resisted by Mr. Pulikkool Aboobacker who supported the impugned order on the basis of the reasons contained therein. 2. I have considered the rival submissions and I have considered WP(C)N0. 22641/06 -4- the materials placed on record, particularly Ext.P4, the disputed and admitted signatures. I do notice a distinction between the powers of the court under Order 26 Rules 10 and 10-A and those under Rule 14 and I find considerable merit in the submission of Mr.Krishnan that even without setting aside a report already on record there is power in the court to direct further enquiry in a given case invoking the powers under Rules 10 and 10-A of Order 26. I feel that in the interests of justice and for resolving the controversial issue in this case, it is necessary that the document in question be forwarded for a further forensic scrutiny. 3. The result is that the impugned order is set aside and the I.A. is allowed. The learned Munsiff is directed to forward the admitted documents and the disputed documents along with a copy of the report submitted by the expert already appointed to the Government Forensic Science Laboratory at Hyderabad or Chennai at the cost of the petitioner and get a further report. It is made clear that neither the earlier report nor the further report to be obtained will be accepted as evidence without examining the authors of the reports. The above order is made conditional on the petitioner paying a sum of Rs.1000/- by way of cost to the contesting respondent either directly or through WP(C)N0. 22641/06 -5- his counsel in this court within three weeks from today. It is also made clear that the expenses to be incurred in connection with the reference being made by virtue of this judgment will not form part of the cost of the suit and irrespective of the result of the suit, such cost should be borne by the present petitioner himself. (PIUS C.KURIAKOSE, JUDGE) ksv/-