IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 WP(C).No. 2769 of 2010(O) ------------------------- ORDER ON IA NO.1433/2009 IN OS NO.135/2006 OF SUB COURT, KATTAPPANA OS.135/2006 of SUB COURT,KATTAPPANA .................... PETITIONER(S): --------------- SHIJU JOHN, S/O. JOHN, AGED 38 YEARS, RESIDING AT KALATHOOKUNNEL HOUSE, MES COLLEGE JUNCTION, VATTAPPARA KARA, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.JOICE GEORGE RESPONDENT(S): --------------- MATHAI @ APPACHAN, S/O. THOMAS, AGED 52 YEARS, RESIDING AT THEVARPARAMBIL HOUSE, MES COLLEGE JUNCTION, VATTAPPARA KARA, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. ADV. SRI.LATHEESH SEBASTIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.2769/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINTIN OS NO.135/.2006 BEFORE THE SUBORDINATE JUDGES COURT, KATTAPPANA EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY THE RESPONDENT IN OS 135/2006 BEFORE THE SUBORDINATE JUDGES COURT, KATTAPPANA EXT.P3 TRUE COPY OF THE IA NO.1433/2009 IN OS NO.135/2006 OF THE SUB COURT, KATTAPPANA EXT.P4 TRUE COPY OF IA NO.1432/2009 IN OS 135/2006 OF THE SUB COURT, KATTAPPANA EXT.P5 TRUE COPY OF THE ORDER DATED 11.1.2010 IN IA NO.1433/2009 IN OS NO.135/2006 OF THE SUB COURT, KATTAPPANA //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.2769 of 2010 -------------------------------------- Dated this the 25th day of May, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P5, order refusing to send the disputed cheque to the expert for opinion. Petitioner sued respondent for recovery of money based on a cheque dated 02.05.2006 allegedly issued by the respondent for discharge of the debt due to the petitioner. Respondent contended that he has not executed any such cheque and that the signature in the said cheque is forged. After the case was posted for trial in the list, petitioner filed I.A.No.1433 of 2009 to send the cheque to the expert for opinion in view of the denial of execution of the cheque and the signature in it. Though no written objection was preferred by the respondent, learned Sub Judge after hearing both sides vide Ext.P5, order refused permission to send the cheque to the expert. One reason is that the application was preferred after the case was posted for trial in the list. The other reason is that version of respondent is that petitioner/plaintiff had taken away a blank cheque from the residence of respondent and making use of the same, falsely instituted the suit. 2. I have heard counsel on both sides. I have gone through the copy of plaint, written statement and I.A.No.1433 of 2009. In the written statement, respondent has a specific contention that the signature in the disputed cheque is not his and that it is forged. In that situation, opinion of an expert as to the WP(C) No.2769/2010 2 authenticity of the signature in the disputed cheque is relevant. Mere fact that case was posted for trial in the list was not by itself sufficient to reject the prayer of petitioner. 3. Learned counsel for petitioner submits that in case the cheque is sent to expert for opinion the handwriting in the cheque also may be examined. That question will arise only if the petitioner has a case that the cheque was filled up by the respondent himself. It is seen that such a question was not urged before learned Sub Judge while I.A.No.1433 of 2009 was being considered. Hence I leave that matter to be decided by the learned Sub Judge. On going through the records and hearing counsel on both sides I find no reason why petitioner should not be given an opportunity to send the disputed cheque for the opinion to an expert. Resultantly this Writ Petition is allowed in the following lines: i. I.A.No.1433 of 2009 is allowed and that the prayer to send the disputed cheque to the expert for opinion is allowed. Court below shall obtain the admitted signatures of respondent for comparison. WP(C) No.2769/2010 3 ii. The question whether handwriting in the disputed cheque should be examined by the expert shall be decided by the learned Sub Judge taking into account the stand of the petitioner vis-a-vis the authenticity of handwriting in the cheque. If petitioner contends that the cheque is filled up in the handwriting of respondent, learned Sub Judge may consider whether the writings in the disputed cheque is also to be examined by expert. If necessary sufficient admitted writing of respondent shall be obtained by the learned Sub Judge. iii. The batta payable to the expert, who is liable to pay the same and to which expert the cheque shall be sent for examination shall be decided by the learned Sub Judge. THOMAS P.JOSEPH, Judge. cks