IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WP(C).No.34363 of 2008 (N) ---------------------------------- OS.54/2008 of PRL.MUNSIFF, KASARAGOD .................... PETITIONER: --------------- LINGAPPA POOJARY, S/O.SANKAPPA POOJARY, KOLYA, SOMESWAR VILLAGE, P.O.KOTEKAR, MANGALORE, DAKSHINA KARNATAKA DISTRICT. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT: ---------------- U.M.MOHAMED, S/O.MOIDEEN KUNHI, AZAD NAGAR, ULLAL, MANGALORE. ADV. SRI.K.G.GOURI SANKAR RAI FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.34363 of 2008 (N) APPENDIX PETITIONER'S EXTS:- EXT.P1:- TRUE COPY OF THE PLAINT IN O.S.54/08, MUNSIFF COURT, KASARAGOD. EXT.P2:- TRUE COPY OF THE WRITTEN STATEMENT FILED IN O.S. NO.54/08, MUNSIFF COURT, KASARAGOD. EXT.P3:- TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. NO.1883/08 IN O.S.54/08 MUNSIFF COURT, KASARAGOD. EXT.P4:- TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT (PLAINTIFF) IN I.A. NO.1883/08 IN O.S.54/08 MUNSIFF COURT, KASARAGOD. EXT.P5:- TRUE COPY OF THE ORDER OF THE MUNSIFF COURT, KASARAGOD IN I.A. NO.1883/08 IN O.S.54/08. RESPONDENT'S EXTS:- EXT.R1:- PHTOSTAT COPY OF THE SALE DEED DOCUMENT NO.1539/06 OF S.R.O. MANJESHWAR. EXT.R1(a):- ENGLISH TRANSLATIONO F RELEVANT PORTION OF EXT.R1. EXT.R1(b):- PHOTOSTAT COPY OF THE AGREEMENT ENTERED BETWEEN LINGAPPA POOJARY AND U.M.MOHAMMED. EXT.R1(c):- ENGLISH TRANSLATION OF EXT.R2. ............... K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34363 of 2008 ------------------------------------------------ Dated this the 12th day of January, 2009 JUDGMENT The petitioner is the defendant in O.S.54/08 on the file of the Munsiff's Court, Kasaragod. He filed I.A.1883/08 in the said suit for a commission being issued to assess the market value of the suit property. The said application was dismissed by the court below vide Ext.P5 order which is assailed in this Writ Petition. 2. Counsel for the petitioner/defendant submits that the suit is one for specific performance of an agreement allegedly executed by the petitioner/defendant that written statement has been filed by the petitioner denying execution of the agreement; that the property is having an extent of 1 acre and is located in a very important locality whereas the total value shown in the agreement is only W. P. C. No.34363 of 2008 -2- Rs.90,000/- when the property is actually worth much more. According to petitioner the property will be worth Rs.10 lakhs and ascertaining of the market value of the property issuing a commission would be a circumstance which would tell upon the genuineness or otherwise of the suit agreement and that therefore, the court below should have allowed the commission application to ascertain the market value of the scheduled property and Ext.P5 order therefore, deserves to be reversed. 3. It is vehemently contended before me by the counsel for the respondent that what is agreed to be sold to the respondent by the petitioner is a property purchased by him ten months prior to execution of the suit agreement for a consideration of Rs.35,000/-; that the consideration agreed to between the W. P. C. No.34363 of 2008 -3- parties is Rs.90,000/- and half of that amount is paid as advance and that the contention of the petitioner/defendant is only to protract the litigation bringing in evidence extraneous matters so as to fish out of muddled water. 4. It is worthy to note that when execution of a document is denied by one party the burden is on the party alleging due execution to establish due execution. Unless the respondent/plaintiff who seeks for relief relying on the suit agreement succeeds in establishing due execution of the suit agreement, he will not be able to succeed in the suit. If at all the defendant shows that he has not executed the suit agreement and that the suit agreement relied on by the plaintiff is bogus or is brought into existence by fraudulent means or is made up, that is sufficient for him to get the suit W. P. C. No.34363 of 2008 -4- dismissed. The question as to what was the consideration agreed upon between the parties is a matter that has to come out on evidence being adduced regarding the genuineness of the suit agreement and it does not depend on the value the property may fetch in open market at present. It would also gain importance when it is established that the suit property agreed to be sold for Rs.90,000/- was purchased by the petitioner only ten months back for just less than half of the consideration at which it is agreed to be sold after ten months. A local enquiry to be conducted by the Commissioner cannot be accepted for any purpose whatsoever in deciding those issues. The dismissal of the commission application by the court below in the circumstances cannot be faulted. There is no merit in this Writ Petition assailing Ext.P5 order. W. P. C. No.34363 of 2008 -5- 5. This Writ Petition is hence, dismissed. K.P.BALACHANDRAN, JUDGE kns/-