IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 OP(C).No. 997 of 2010(O) ------------------------------------- OS.NO. 861/2007 of PRINCIPAL SUB COURT,THRISSUR .................... PETITIONER/2ND DEFENDANT IN O.S -------------------------------------------------------- LALA, W/O.NADUVILTHARA SASI, PAMBUR DESOM, KARRUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENT(S): COUNTER PETITIONER/PLAINTIFF ---------------------------------------------------------------------------- 1. DEVASSY, S/O.ILAN VARGHESE, NANDIPULAM VILLAGE DESAM, MUKUNDAPURAM TALUK-PIN-691 585. 2. CHANDRAN, S/O.ILLICKAL APPU, PAMBUR DESAM, KURRUR VILLAGE, THRISSUR DISTRICT-680 001. R1 BY ADV. SRI.V.M.KRISHNAKUMAR SMT.P.A.ANITHA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts OP(C)NO.997/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORIGINAL SUIT AS O.S.NO.861/2007 FILED BY THE 1ST RESPONDENT BEFORE THE SUB COURT, THRISSUR. P2 COPY OF THE SALE DEED EXECUTED BY THE 2ND RESPONDENT IN FAVOUR OF THE PETITIONER. P3 COPY OF THE SALE AGREEMENT ALLEGED TO HAVE BEEN EXECUTED IN BETWEEN THE 1ST RESPONDENT AND THE 2ND RESPONDENT. P4 COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE SUB COURT, THRISSUR IN O.S.NO.861/2007. P5 COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE 2ND RESPONDENT/1ST BEFORE THE SUB COURT, THRISSUR IN O.S.NO.861/2007 P6 COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE SUB COURT, THRISSUR AS I.A.NO.7548/2010 IN O.S.NO.861/2007. P7 COPY OF THE OBJECTION FILED BY THE 1ST RESPONDENT AGAINST I.A.NO. 7548/2010 IN O.S.NO.861/2007. P8 COPY OF THE ORDER DATED 14/10/2010 PASSED IN I.A.NO.7548/2010 IN O.S.NO.861/2007,BY THE LEARNED PRINCIPAL SUB JUDGE, THRISSUR. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.997 of 2010 --------------------------------------- Dated this 02nd day of August, 2011 JUDGMENT Ext.P8, order passed by the learned Principal Sub Judge, Thrissur on October 14, 2010 on I.A.No.7548 of 2010 in O.S.No.861 of 2007 refusing to send Ext.P3, disputed agreement for sale to the expert for opinion regarding signature is under challenge. First respondent claimed that he had entered into an agreement (Ext.P3) with the second respondent/first defendant on 11.05.2007 for purchase of the suit property, and at a time when that agreement was in force the second respondent transferred the property to the petitioner/second defendant as per sale deed No.4523 of 2007 dated 20.07.2007. First respondent sued petitioner and second respondent for decree for specific performance of Ext.P3, agreement and for cancellation of Ext.P2, sale deed referred to above. Second respondent filed written statement (Ext.P5) denying execution of the agreement. In the written statement filed by the petitioner (Ext.P4) he only pleaded ignorance about the agreement. Second respondent/first defendant remained absent and he was set ex parte, according to the petitioner on account of collusion between respondents 1 and O.P(C).No.997 of 2010 -: 2 :- 2. Petitioner was permitted to amend his written statement as per order dated 16.07.2010 to incorporate a plea that no such agreement (Ext.P3) is executed between respondents 1 and 2. It is while so, petitioner filed I.A.No.7548 of 2010 to send the disputed agreement to the expert for opinion. That application was resisted by the second respondent on various grounds. Learned Sub Judge dismissed the application by Ext.P8, order observing that second respondent/first defendant is ex parte and hence it is not possible to obtain specimen signature from him. It is also observed that I.A.No.7548 of 2010 is highly belated and there is no explanation for the delay. According to the learned Sub Judge purport of the application is to protract the proceeding. 2. Learned counsel for petitioner contends that in the suit property, after the petitioner purchased as per Ext.P2, sale deed she has constructed a building particularly the second respondent/first defendant is remaining idle, it is necessary for the petitioner to prove that no such agreement is executed between respondents 1 and 2. It is pointed out that whatever plea that was available to the second respondent/first defendant is available to his assignee also, in particular, in this case since Ext.P2, sale deed was executed in favour of petitioner prior to the O.P(C).No.997 of 2010 -: 3 :- institution of the suit. Learned counsel for respondents reiterated the arguments advanced in the trial court and supported Ext.P8, order. 3. By now, it is settled (See the decision in Ram Awadh Vs. Achhaibar Dubey (AIR 2000 SC 860)) that the assignee is entitled to take up all plea available to the transferor. Hence, it is within the power of petitioner to prove that no such agreement (Ext.P3) was executed between respondents 1 and 2. One way of proving that no such agreement was executed is by getting the opinion of an expert though the report by itself is not conclusive. Having regard to these aspects I do not find reason to disallow the request on I.A.No.7548 of 2010. 4. Then the next question is how the specimen signature of second respondent/first defendant is to be obtained. Learned counsel submits that the vakalath and written statement filed by the second respondent/first defendant contains his signature but, comparison of the disputed signature with post litum signatures is not considered safe. Assuming that second respondent/first defendant remains absent, it is not as if the Court is powerless to issue summons to him to appear in Court and give specimen hand writing/signature, as the case may be. It is also open to the petitioner to produce/call for admitted signature of the second O.P(C).No.997 of 2010 -: 4 :- respondent during the time the disputed agreement was executed. That is the responsibility of the petitioner. Having heard counsel on both sides and considered the above circumstances I am inclined to hold that Ext.P8, order cannot be sustained and opportunity must be given to the petitioner to get the disputed agreement examined by an expert. Resultantly this original petition is allowed in the following lines: (i) Ext.P8, order dated October 14, 2010 on I.A.No.7548 of 2010 in O.S.No.861 of 2007 of the Court of learned Principal Sub Judge, Thrissur is set aside and I.A.No.7548 of 2010 is allowed. (ii) Petitioner shall produce/request the learned Principal Sub Judge to summon the admitted signature of the second respondent/first defendant during the time the impugned agreement was executed, for comparison by the expert. (iii) I make it clear that it is open to the learned Principal Sub Judge to summon the second respondent/first defendant to give specimen signature in the open Court. (iv) Necessary follow up action can be taken by the learned Sub Judge pursuant to the above order. (THOMAS P JOSEPH, JUDGE) Sbna/-