IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 OP(C).No. 3115 of 2011(O) ------------------------------------- OS.NO.628/2008 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER ---------------------- ARAVINDAN, S/O. BHARATHAN, RESIDING AT CHAKKUPARAMBIL HOUSE, MARUTHAROAD P.O., PALAKKAD DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE ADV.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP SRI.MATHEWS RAJU RESPONDENT(S): -------------------------- SYAMALAKUMARI, W/O. VIJAYAN, RESIDING AT LAKSHMI, MILMA ROAD, KALLEPPULLY P.O., PALAKKAD-678 018. BY ADV. SRI.JACOB SEBASTIAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.3115/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE I.A.NO.2947/2011 IN OS NO.628/2008 ON THE FILE OF THE PRINCIPAL SUB COURT, PALAKKAD DATED 7/9/2011. P2 COPY OF THE ORDER IN IA NO.2947/2011 IN OS NO.628/2008 ON THE FILE OF THE PRINCIPAL SUB COURT, PALAKKAD DATED 23/9/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3115 of 2011 --------------------------------------- Dated this 27th day of October, 2011 JUDGMENT This original petition is in challenge of Ext.P2, order declining the request of petitioner to send the agreement for sale dated 21.10.2004 to the expert for opinion on the disputed endorsements on the said agreement. 2. Respondent filed the suit for specific performance of an agreement for sale dated 21.10.2004 contending that `.20,000/- was paid to the petitioner as advance on the date of the agreement followed by payment of a further sum of `.60,000/- in four installments on 02.11.2004, 31.01.2005, 31.08.2006 and 17.12.2007. Petitioner in his written statement did not dispute execution of the agreement or receipt of `.20,000/- as advance at the time of its execution but denied receiving any further amount from the respondent or making any endorsements to that effect. 3. Petitioner filed Ext.P1, application to send the disputed document to the expert contending that in the written statement, he had specifically denied the endorsements and signatures on the agreement and that he had contended the same as fabricated and falsely created by the respondent. That O.P(C).No.3115 of 2011 -: 2 :- application was resisted by the respondent in the trial court and that resulted in Ext.P2, order refusing to send the document to the expert. Ext.P2, order is under challenge. 4. Learned counsel for petitioner has contended that in view of the specific denial petitioner has made as regards the endorsements and signatures on the back of the agreement relating to the alleged payment and receipt of `.60,000/- in four installments it was necessary that the document is send to the expert for opinion. Learned counsel also brought to my notice the counter affidavit filed by the respondent in this proceeding where, in paragraph 4 respondent has stated that he has no objection in the disputed endorsements being examined by the hand writing expert. 5. In view of the above circumstances and as it is appropriate that the endorsements and signatures in the agreement dated 21.10.2004 as to the alleged payment and receipt of `.60,000/- in four installments is examined by the expert. The opinion of the expert in that regard is relevant for adjudication of the dispute involved. In that view of the matter, learned Principal Sub Judge was not right in dismissing Ext.P1, application. O.P(C).No.3115 of 2011 -: 3 :- Resultantly this original petition is allowed as follows: Ext.P2, order is set aside. Ext.P1, application is allowed. Learned Principal Sub Judge is directed to take necessary steps to send the document with the admitted writing/signature of the petitioner to the expert and get opinion on the disputed endorsement/signature on the agreement regarding the disputed payments. Expenses for the same shall be met by the petitioner. Learned Principal Sub Judge is directed to take the necessary follow up action in the matter as provided under law. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-