IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 OP(C).No. 873 of 2010(O) ------------------------ AGAINST THE ORDER IN IA.6628/2010 IN OS.398/2007 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: ------------------------------- KAMALUS, S/O.THANAS, JEENA COTAGE, PALLITHURA P.O., THUMBA, THIRUVANANTHAPURAM. BY ADV. SRI.P.NARAYANAN SMT.M.R.JAYALATHA SRI.P.V.JOSE RESPONDENT: --------------- SHYNY PAUL, JANCY COTAGE, PALLITHURA P.O., THUMBA, THIRUVANANTHAPURAM, PIN-695 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.873 of 2010 --------------------------------------- Dated this 26th day of November, 2010 JUDGMENT Defendant in O.S.No.398 of 2007 of the court of learned Additional Sub Judge, Thiruvananthapuram is the petitioner before me. That is a suit for money filed by respondent on the strength of a demand promissory note dated 20-01-2006 allegedly executed by petitioner. Respondent claimed that petitioner borrowed Rs.3,00,000/- on 20-01-2006 and executed the said document. Petitioner filed Ext.P3, written statement on 11-06-2009 denying the transaction as well as execution of the demand promissory note. He contended that neither the hand writing nor the signature in the demand promissory note is of his. The suit was posted for trial in the list on 08-11-2010. As per the impugned order petitioner filed I.A.No.6628 of 2010 on 08-11-2010 (the date on which case was to be taken up for trial in the list) requesting that the document be send to the expert for opinion. Respondent did not raise any objection. Learned Munsiff found that at that belated stage when evidence had started sending the document to the expert is not required, no document containing admitted signature of petitioner is produced and observing that if necessary specimen O.P(C).No.873 of 2010 : 2 : signature of petitioner could be obtained in court for comparison with the disputed signature under Sec.73 of the Evidence Act dismissed I.A.No.6628 of 2010. That order is under challenge. Learned counsel submitted that in so far as the request was not objected by respondent learned Munsiff ought to have allowed the same. 2. I am not persuaded to think that power of the court to decide I.A.No.6628 of 2010 was dependant on whether respondent objected or not to that application. I must remember that it is a simple suit on a demand promissory note (allegedly executed by the petitioner) filed in the year 2007 and it was taken up for trial in the list after three years on 08-11-2010. I am not persuaded to think that in a suit of that nature the time intervening is small so that petitioner could not take effective steps on time. I must also bear in mind that denying the execution in all respects petitioner had filed written statement on 11-06-2009 but the application to send the document to the expert (as learned Munsiff would say) was filed only on 08-11-2010. True, petitioner would say that it was filed on 06-11-2009. It was clear that it was one year and 5 months after filing of the written statement that the said application came. Learned Munsiff observed that if the application is allowed disposal of the suit would further be delayed. I do not find reason to O.P(C).No.873 of 2010 : 3 : interfere. I make it clear that in an appeal arising from judgment and decree in O.S.No.398 of 2007 it will be open to the petitioner to challenge correctness of Ext.P5, order notwithstanding dismissal of this petition. It is also open to the petitioner to produce admitted signatures prior to the alleged execution of the document in support of her case, if that is relevant for consideration. If petitioner wants time to produce her evidence in the court below learned Sub Judge shall consider that request and grant sufficient time. With the above observation this petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-