IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 23739 of 2009(O) --------------------------------------- OS.247/2004 of MUNSIFF COURT, ALATHUR .................... PETITIONER(S): ------------------------ SEETHALAKSHMI AMMA, W/O.GOVINDANKUTTY NAIR,RESIDING AT PUNNARAKKAT HOUSE,NAIR THARA, VADAKKENCHERRY P.O.,ALATHUR TALUK, PALAKKAD DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE BY ADVS. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENT(S): ------------------------- SAVITHRI AMMA,W/O.RAVEENDRANATHAN, RESIDING AT VRINDAVANAM,NAIR THARA, VADAKKENCHERRY P.O.,ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.23739/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PLAINT IN OS. NO.247/2004 ON THE FILE OF THE COURT OF THE MUNSIFF OF ALATHUR INSTITUTED BY THE RESPONDENT DTD. 1.9.04. P2:- COPY OF THE APPLICATION SUBMITTED BY THE RESPONDENT DTD. 9.6.2009. P3:- COPY OF THE OBJECTION TO THE APPLICATION SUBMITTED BY THE PETITIONER DTD. 24.6.2009. P4:- COPY OF THE ORDER IN IA. 653/2009 IN OS. 247/2004 ON THE FILE OF THE COURT OF THE MUNSIFF OF ALATHUR DTD. 14.7.2009. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE JUDGMENT IN AS. NO.216/2005 ON THE FILE OF THE DISTRICT , PALAKKAD. DT. 11.7.2008. R1(b):- COPY OF THE REPLICATION FILED BY THE PETITIONER TO THE WRITTEN STATEMENT IN OS. NO.247/2004 ON THE FILE OF THE MUNSIFF'S COURT OF ALATHUR DTD. 3.1.2005. TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 23739 OF 2009 ------------------------------- DATED THIS THE 12TH DAY OF OCTOBER, 2010 JUDGMENT Petitioner is the lst defendant in O.S.No.247/04 on the file of the Munsiff's Court, Alathur. The respondent herein is the plaintiff in the suit. The suit was filed to set aside document No.2483/03 and to declare that the description of the property therein is not correct. The document No.2683/03 is the release deed executed by one Sarojini Amma, who is the sister of the plaintiff and defendants, in favour of the l st defendant. 2. Ext.P4 order passed in I.A.No.653/089 is under challenge. The said IA was filed by the plaintiff in the suit under Section 75(e) to send the power of attorney to the handwriting expert for comparing the signature. The lst respondent opposed the application contending that the application was filed with an intention to protract the matter indefinitely without any valid ground. -2- WP(C).No.23739/2009 3. The learned counsel for the petitioner submitted that late Sarojini Amma's legal heirs are also parties to the release deed and not only Sarojini Amma but also her legal heirs executed the release deed releasing their right in favour of the lst respondent and that the right of residence of the plaintiff is not in any way affected, therefore the suit itself is filed without any merit and bona fides. The learned Munsiff considered the application on merits and observed that as far as this petition is concerned, it is the definite case of the petitioner that the signature in the quesioned power of attorney allegedly executed by late Saraswathi Amma is forged one and not actually subscribed by Sarojini Amma. In order to prove the said fact, the applicant wanted to compare the signature in the power of attorney with the signature in the admitted documents. The court below found that in the interest of justice an expert opinion regarding the execution of the power of attorney is essential for the proper adjudication of the suit. The court below also rightly observed that there is no circumstance to shut out the evidence on this aspect. The court below allowed the petition and -3- WP(C).No.23739/2009 ordered that the power of attorney shall be sent to the handwriting expert for comparison of the signature. 4. In view of the facts and circumstances of the case leading to the filing of the petition and after considering the merit of the application, this Court is also of the view that it is necessary in the interest of justice to send the disputed power of attorney to the handwriting expert for comparison of the signature. I do not find that any valid grounds are made out by the petitioner in this writ petition filed under Article 227 of the Constitution of India. Writ Petition fails and accordingly dismissed. The impact of the release deed executed by late Sarojini Amma and her legal heirs is the question touching the merits of the case and definitely the court will consider all the points including the said aspects, before taking a final decision. The court below shall send the document with necessary instructions to the handwriting expert to submit the report within six months. HARUN-UL-RASHID, Judge. kcv.