IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 OP(C).No. 3285 of 2011(O) ------------------------------------- [OS.NO.147/2005 OF PRINCIPAL SUB COURT, PALAKKAD] .................... PETITIONER/PETITIONER/PLAINTIFF: ------------------------------------------------------ BALASUBRAMANIAN,S/O.NANJAPPA KOUNDER, ATTAYAMPATHY,MUTHALAMADA VILLAGE,GOVINDAPURAM P.O, CHITTUR TALUK, PALAKKAD. BY ADVS. SRI.SAJAN VARGHEESE .K, SRI.LIJU. M.P. RESPONDENT/RESPONDENT/DEFENDANT: -------------------------------------------------------------- SHAIK MUSTAFFA, S/O.SHAHUL HAMEED ROWTHER, ATTAYAMPATHY,MUTHALAMADA VILLAGE, GOVINDAPURAM P.O,CHITTUR TALUK,PALAKKAD- 678 001. BY ADV. SRI.RAJESH SIVARAMANKUTTY. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 11/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3285/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE PLAINT IN O.S. NO. 147/05 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. EXT.P.2: COPY OF THE PROMISSORY NOTE DTD. 01/06/2002. EXT.P.3: COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT. EXT.P.4: COPY OF THE OBJECTION FILED IN I.A. NO. 700/2007 IN O.S. NO. 147/05 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. EXT.P.5: COPY OF THE WRITTEN STATEMENT IN O.S. 498/02 ON THE FILE OF THE MUNSIFF'S COURT, CHITTUR. EXT.P.6: COPY OF THE PETITION IN I.A. NO. 321/2011 IN O.S. NO.147/05 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD TO CALL FOR THE RECORDS. EXT.P.7: COPY OF THE PETITION IN I.A. NO. 322/2011 IN O.S. NO. 147/05 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. EXT.P.8: COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A. NO.322/2011 IN O.S. NO.147/05 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. EXT.P.9: COPY OF THE COMMON ORDER DTD. 20/08/2011 PASSED IN I.A. NO. 321/11 AND I.A. NO.322/11 IN O.S. NO. 147/05 ON THE FILE OF SUBORDINATE JUDGE'S COURT, PALAKKAD. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3285 of 2011 --------------------------------------- Dated this 11th day of November, 2011 JUDGMENT Plaintiff in O.S.No.147 of 2005 of the Court of learned Sub Judge, Palakkad is aggrieved by Ext.P9, order dated 20.08.2011 on I.A.Nos.321 of 2011 and 322 of 2011 (Exts.P6 and P7). Petitioner sought a decree for recovery of money from the respondent as per a demand promissory note (for short, "the DPN”) a copy of which is Ext.P2. Respondent denied the execution of the said DPN in Ext.P3, written statement. On the request of respondent/defendant, the disputed DPN along with certain other documents were forwarded to the expert for opinion as to the disputed signature. While so, (according to the respondent, about five years later) petitioner filed Exts.P6 and P7, applications. The said applications were filed in the following circumstances – brother of petitioner had filed O.S.No.498 of 2002 in the Court of learned Munsiff, Chittoor against the respondent for recovery of money based on two DPNs allegedly executed by the respondent. Respondent took up appropriate contentions in defence of that suit. That suit ended in a decree against the respondent and I am told that the appeal filed by the O.P(C).No.3285 of 2011 -: 2 :- respondent also ended in a dismissal. Petitioner filed Ext.P6, application to call for the said two DPNs from O.S.No.498 of 2002 and send those documents also to the expert for examination along with the disputed DPN in the present case. Exts.P6 and P7, applications were objected by the respondent by Ext.P8. Learned Sub Judge held in Ext.P9, order that the disputed document has already been forwarded to the expert along with the required documents for examination and hence it is not necessary to sent further documents for the same purpose. Learned Sub Judge was of the view that the applications are belated. Ext.P9, order is under challenge. 2. Learned counsel for petitioner has invited my attention to Ext.P5, copy of written statement filed by the respondent in O.S.No.498 of 2002 to contend that execution of the two DPNs in the said suit is not disputed by the respondent, his case being that he was coerced to sign the said DPNs. It is contended by the learned counsel that in the above circumstance, it is necessary to prove the case set up by petitioner in O.S.No.147 of 2005 that the said two DPNs from O.S.No.498 of 2002 are called for and sent to the expert for examination. 3. Learned counsel for respondent, referring to Ext.P8, objection has contended that respondent has not admitted all the O.P(C).No.3285 of 2011 -: 3 :- signatures appearing in the two DPNs in O.S.No.498 of 2002. It is contended that one set of signatures in the said documents are disputed by the respondent. 4. I need not in this proceeding go into that question and decide whether or not respondent has admitted all the signatures in the two DPNs involved in O.S.No.498 of 2002. In the light of the contention parties have raised, it is appropriate that petitioner is given opportunity to prove his case by taking the two DPNs in O.S.No.498 of 2002 also to the expert for examination. The objection of the respondent in Ext.P8 that all the signatures occurring in the DPNs in O.S.No.498 of 2002 are not admitted by the respondent has also to be taken care of. In the view I have stated, I am not inclined to upheld Ext.P9, order. Resultantly this original petition is allowed as follows: Ext.P9, order is set aside and Exts.P6 and P7, applications will stand allowed as follows: (i) Learned Sub Judge, Palakkad shall call for the two DPNs from O.S.No.498 of 2002 of the Court of learned Munsiff, Chittoor. On such request being made, learned Munsiff, Chittoor shall, after retaining photocopies of the said DPNs duly attested by the C.M.O of that Court, transmit the original DPNs to the learned Sub Judge. (ii) When those DPNs are received, learned Sub Judge shall ascertain from the respondent which O.P(C).No.3285 of 2011 -: 4 :- are all the signatures he admits and does not admit in the said two DPNs. (iii) Before sending the said DPNs summoned from O.S.No.498 of 2002 to the expert, learned Sub Judge shall decide whether the signatures disputed by the respondent have been found to be genuine in the judgment in O.S.No.498 of 2002 and/or the appeal arising therefrom. In case learned Sub Judge finds that genuineness of the disputed signatures in those have also been upheld by the learned Munsiff and/or learned Sub Judge, those signatures shall also be examined by the expert. In case the dispute of respondent as to genuineness of the disputed signatures if any in the DPNs called for from O.S.No.498 of 2002 has been upheld by the learned Munsiff and/or learned Sub Judge, those disputed signatures need not be examined by the expert. (iv) After report of the expert on the documents is received, learned Sub Judge shall retain photocopies of the DPNs in O.S.No.498 of 2002 attested by the Chief Ministerial Officer of that Court and send the originals to the Court of learned Munsiff, Chittoor (O.S.No.498 of 2002). (vi) Additional charges if any payable for the examination shall be met by petitioner. (vii) Registry shall forward a copy of this order to the learned Munsiff, Chittoor for compliance. (THOMAS P. JOSEPH, JUDGE) Sbna/-