IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WP(C).No.34821 of 2008 (U) ---------------------------------- AGAINST THE ORDER IN IA 793/2008 IN OS.63/2006 of SUB COURT,KATTAPPANA .................... PETITIONER: --------------- MATHEWKUTTY, S/O.MATHEW, KUZHINJALIL HOUSE, KADANADU KARA, KADANADU P.O BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENTS: ----------------- 1. T.R.SASIKUMAR, S/O.RAGHAVAN, RESIDING AT BLOCK NO.1167, PRAKASHGRAM KARA, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK. 2. M.K.CHANDRAN, S/O.KUMARAN, MUKKUMKAL HOUSE, RAMAKKALMEDU KARA, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34821 of 2008 ------------------------------------------------ Dated this the 26th day of November, 2008 JUDGMENT The petitioner is the defendant in O.S.63/06 on the file of the Sub Court, Kattappana. Respondents 1 and 2 as plaintiffs instituted the said suit for return of advance amount paid by them to the petitioner/ defendant under an agreement to sell an extent of 5 acres and 41 cents of land to them. The case of the respondents is that under the agreement an amount of Rs.5,25,000/- was received by the defendant and as per the terms of the agreement he has paid a further amount of Rs.2 lakhs towards sale consideration and that was endorsed on the reverse of the paper on which the agreement had been written. The petitioner/defendant filed written statement admitting the agreement and receipt of Rs.5,25,000/-, but disputing the case of the W. P. C. No.34821 of 2008 -2- respondents that he received a further amount of Rs.2 lakhs by endorsement made on the reverse of the agreement. Obviously, therefore, the burden will be heavy on the respondents/plaintiffs to establish that the endorsement whereunder Rs.2 lakhs is alleged to have been received by the petitioner/ defendant is one made by the defendant himself. If they are unable to prove the endorsement as genuine the suit to that extent will have to be dismissed. 2. It is the case of the petitioner that he filed Ext.P8 petition in the court below to have the endorsement allegedly made by him to be got examined by the Assistant Director (Documents) of Forensic Science Laboratory, but that request was disallowed by the trial court vide Ext.P9 order. 3. It is worthy to note in this context that the petitioner had made a similar request W. P. C. No.34821 of 2008 -3- on an earlier occasion and that request was turned down by the court vide Ext.P7 order dt.31/07/08. The relevant portion of the said order reads as follows:- “Upon perusal of the facts of the case, it can be seen that the suit filed by the counter petitioners is for realisation of money. If the petitioner is disputing that the signatures are forged and, it is the burden of proof of the counter petitioners to prove that those signatures are belongs to the petitioner. Therefore, I do not see any reason to allow the prayer of the petitioner. This I.A. is accordingly dismissed.” 4. In view of Ext.P7 order, a further application for the same relief of having the genuineness of the endorsement got examined by an expert made by Ext.P8 application dt. 06/09/08 is barred on principles of res judicata and further for the reasons stated in Ext.P7 order, the request made vide Ext.P8 application was necessarily to be rejected. That was what the court below has done vide Ext.P9 order. I am of the view that assailing the said order in this Writ Petition by the W. P. C. No.34821 of 2008 -4- petitioner is an attempt to protract the trial of the case withholding the advance amount received under the agreement when the claim in the suit is for return of advance amount so received and nothing more. 5. Counsel for the petitioner submits that the admitted advance amount is only Rs.5,25,000/- and the balance Rs.2 lakhs is what is in dispute. The learned counsel was asked as to whether the petitioner/defendant is prepared to deposit the admitted amount of Rs.5,25,000/- to which his answer is that his party is unable to pay the amount now and further that his party has filed another suit against somebody else for return of advance amount he has paid and that therefore, unless he gets that amount, he is not prepared to pay this amount. It is obvious that the attempt of the petitioner/defendant is to protract an adverse decree that he believes will be passed W. P. C. No.34821 of 2008 -5- against him. 6. This Writ Petition is devoid of merit and is dismissed. K.P.BALACHANDRAN, JUDGE kns/-