IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 OP(C).NO. 743 OF 2010(O) ------------------------------------- OS.471/2010 OF II ADDL.SUB COURT,ERNAKULAM .................... PETITIONERS: ----------------------- 1. UNNIKRISHNAN, S/O. LATE KALIYAMMA BHARATHIYAMMA, PARANGOTTUVEETTIL HOUSE, UDAYAMPERUR MURIYIL, MANKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. SAHADEVAN, S/O. LATE KALIYAMMA BHARATHIYAMMA, PARANGOTTUVEETTIL HOUSE, UDAYAMPERUR MURIYIL, MANKUNNAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.V.V.ASOKAN SMT.RUKHIYABI MOHD KUNHI RESPONDENT(S): ------------------------ M.M.ABDUL BASHEER, S/O. M.S.MUHAMMED, MUCHETHU HOUSE, 5/346-B, V.C.AHAMMEDUNNI ROAD, VALIYATHUNADU VILLAGE, ERNAKULAM DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) NO.743 of 2010 ==================================== Dated this the 16th day of November, 2010 J U D G M E N T Defendants in O.S. No.471 of 2010 of the court of learned sub Judge, Ernakulam are the petitioners before me. They challenge Ext.P8, order refusing to send the disputed document to the Expert to identify oldness of the disputed signatures. The dispute has arisen in a suit for specific performance filed by the respondent alleging that there was an agreement for sale among him and petitioners on 01.09.2006 and that petitioners had not performed their part of the contract. Petitioners contended that there was no such agreement with the respondent and that they had an agreement with one M.S. Mani. At the time the agreement was executed between petitioners and M.S. Mani, respondent was not in the picture nor had he signed the agreement, or the counter part which was given to the petitioners (photocopy of which is Ext.P4). It is the case of petitioners that respondent and M.S. Mani concocted the agreement for sale produced in the court (photocopy of which is Ext.P2) by putting the signature of O.P(C) No.743 of 2010 -: 2 :- respondent as well. It is in the circumstances that petitioners wanted oldness of the disputed signature of respondent in the agreement for sale to be examined by the Expert. That application was opposed by the respondent. Learned Sub Judge proceeded on the assumption that the agreement for sale was admitted by petitioners and hence they are bound by its contents. Learned Sub Judge observed that it is not necessary to send the document to the Expert for opinion and accordingly dismissed the application. That order is under challenge. Learned counsel contends that to ascertain difference in the oldness of disputed signatures of respondent in the agreement and the signatures of petitioners in the agreement it is necessary to send the document to the Expert. Learned counsel has also taken exception to the observations made by learned Sub Judge in paragraph 5 of the impugned order. 2. It is contended, at no point of time petitioners had admitted of any agreement with the respondent. I have gone through paragraph 5 of the impugned order. In the light of the contentions raised by petitioners it cannot be said that they have admitted execution of agreement for sale (in the way pleaded by the respondent). May be what the learned Sub Judge meant is O.P(C) No.743 of 2010 -: 3 :- only that an agreement for sale (between petitioners and M.S.Mani) is admitted. Whatever that may be I make it clear that the observations learned Sub Judge has made in the impugned order concerning execution of the agreement will be confined to the disposal of I.A No.6105 of 2010 and shall not have any bearing on the ultimate decision to be arrived at in the suit. 3. Case of petitioners is that original agreement was concocted by respondent and M.S. Mani to make it appear that the agreement for sale was with the respondent. Learned counsel for petitioners for the said purpose invited my attention to the apparent discrepancy in Ext.P2 and P4, photocopies of original agreement produced by the respondent in the court below and counter part of the agreement given to the petitioners. Learned counsel points out that in the counter part, respondent has not signed. 4. If the plea of petitioners is one of concoction of original agreement produced by the respondent with the connivance of M.S. Mani it is open to the them to prove that by appropriate evidence. Now the purport of sending the document to the Expert is to ascertain oldness of the admitted and disputed signatures in the original agreement. Having regard to O.P(C) No.743 of 2010 -: 4 :- the facts and circumstances I am inclined to think that such an exercise is not required. Hence the request to send the document to the Expert cannot be allowed. I do not find reason to interfere with the ultimate order passed by the learned Sub Judge. I make it clear that notwithstanding whatever observations learned Sub Judge has made in the impugned order it will be open to the petitioners to prove their contention regarding alleged concoction of the agreement by producing appropriate evidence in that regard. With the above observation this petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv