IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 OP(C).No. 789 of 2010(O) ------------------------ OS.246/2004 of MUNSIF COURT, KANJIRAPPALLY .................... PETITIONER/DEFENDANT :- ---------------------------------------- P.K.SUBRAMANIAN, AGED 38 YEARS, S/O.KUMARAN, PULKKUNNEL, PAMPADY VILLAGE OF THALAPPALLY THALUK, PALAKKADU DISTRICT. BY ADV. SRI.ALEX.M.SCARIA SRI.SAJU JOSE RESPONDENT(S)/PLAINTIFF :- ----------------------------------------- MR.A.M.SAJIM, AGED 34, S/O.MUHAMMED, PAINAPPALLIL, KANJIRAPPALLY KARA, KANJIRAPPALLY VILLAGE – 686 507. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt S.S.SATHEESACHANDRAN, J. ---------------------------------------- O.P.(Civil) No.789 of 2010 ----------------------------------- Dated this the 19th day of November 2010 J U D G M E N T The defendant in a suit for realization of money has filed this O.P impeaching the correctness of the order passed by the learned Munsiff, Kanjirappally directing him to pay the batta for having examination of the signatures superscribed in the pro-note through an expert. Petitioner/defendant has disputed his signature in the note produced by the plaintiff. On his application, previously the pro-note was sent over to the expert and a report was obtained. That report was in favour to the defendant, and ultimately the suit ended its dismissal. Plaintiff preferred the appeal challenging the dismissal of the suit before the appellate court. Plaintiff also moved an application for setting aside the report of the expert and for sending over the pro-note for further scrutiny. The O.P.(Civil) No.789 of 2010 -: 2:- lower appellate court found merit in the objections raised over the report by the plaintiff and, accordingly, his application for setting aside the report was allowed directing for sending it over again with the admitted signatures of the defendant, as subscribed in documents made at or about the time the pro-note was prepared. Previously, when the pro- note was sent over, the signatures of the defendant obtained in the presence of the trial Judge alone were forwarded for comparison. The appeal being remanded, setting aside the judgment of the trial court, the learned Munsiff ordered for sending over the pro-note with the documents containing signatures superscribed by the defendants at or about the time the pro-note was prepared, directing the plaintiff to deposit the sum payable to the expert. However, later, noticing that examination of the pro-note disputing the signatures superscribed therein was raised by the defendant, who challenges its authenticity, the learned Munsiff directed the defendant to pay the cost reviewing the previous order. Propriety and correctness of that order is challenged in this O.P.(Civil) No.789 of 2010 -: 3:- original petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel for the petitioner. Respondent/plaintiff did not raise any objection when there was a direction by the court, after remand of the case, to deposit the amount payable to the expert for sending over the document for fresh comparison, but, still the learned Munsiff suo moto reviewed the order to direct the petitioner/defendant to deposit the sum, is the grievance espoused by the counsel. 3. Having regard to the totality of the facts and circumstances presented, it is seen that the lower appellate court in the appeal against, the dismissal of suit was satisfied with the objections raised by the plaintiff over the report of the expert that it was based on incomplete data and so much so legally unsustainable. That resulted in setting aside the judgment rendered by the trial court and remitting the case for fresh consideration. I find no impropriety and illegality in the order passed by the learned Munsiff directing the O.P.(Civil) No.789 of 2010 -: 4:- defendant to pay the batta though initially a direction was given to the plaintiff to pay such batta. The defendant had disputed the signatures in the pro-note resisting the suit claim and the burden was on him to substantiate that defence. Previous report obtained by him from the expert was favourable is not a ground to relieve him from meeting the expenses required for sending the document for further scrutiny, when the earlier report had been set aside. However, on completion of the trial, it is open to him to seek for refund of expenses met by him by awarding adequate costs, for sending the documents twice for examination by the expert, provided his defence is established. The Court will also take note of the above aspect in awarding the costs of the suit. Subject to the above observation, the original petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. Jvt