IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 11863 of 2005(K) -------------------------- AGAINST THE ORDER DATED / / IN IA.138/05 IN OS.102/2000 of MUNSIFF COURT, MANJERI .................... PETITIONER: ------------ SREELATHA, AGED 46 YEARS, NJARAKKOTT KALATHIL SANTHAKUMARIAMMA, MANJERI AMOM, ARUKIZHAYA DESOM, ERNAD TALUK. BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH RESPONDENTS: ------------- 1. MATHEW, AGED 56 YEARS, S/O.KUNNUMPURATH MATHEW. 2. MARY, AGED 51 YEARS, D/O.KUNNUMPURATHU MATHEW, W/O.JOSE NIRAPPEL. 3. JASITHA BABY, AGED 41 YEARS, D/O.KUNNUMPURATH MATHEW, W/O.BABY MATTATHIL. 4. REJINA @ DAISI, AGED 38 YEARS, D/O.KUNNUMPURATH MATHEW. 5. SHYANI, AGED 33 YEARS, D/O.KUNNUMPURATH MATHEW, W/O.SHABU. 6. VIJAYALAKSHMI, AGED 56 YEARS, D/O.PULIKKOTT LAKSHMIKUTY AMMA. 7. JOSE, AGED 49 YEARS, S/O.KUNNUMPURATH MATHEW. 8. LAISA, AGED 42 YEARS, W/O.JOSE, PAYYANAD AMSOM AND DESOM, ERNAD TALUK. BY ADV. SRI.K.M.SATHYANATHA MENON FOR R8 SRI.K.SANEESH KUMAR FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WP(C) 11863/2005) PETITIONER'S EXTS. EXT.P1 A TRUE PHOTOCOPY OF THE AFFIDAVIT ACCOMPANYING I.A.138/2005 DTD. 13.1.2005. EXT.P2 A TRUE PHOTOCOPY OF THE ORDER IN I.A.138 OF 2005 IN O.S.102/2000 DATED 11.3.2005. EXT.P3 A TRUE PHOTOCOPY OF THE ORDER IN I.A.139OF 2005 IN O.S.102/2000 DTD. 11.3.2005. EXT.P4 A TRUE PHOTOCOPY OF THE ORDER IN I.A.140/2005 IN O.S. 102/2000 DTD. 11.3.2005. RESPONDENT'S EXTS. EXT.R8(a) TRUE COPY OF WRITTEN STATEMENT DTD. 14.10.2004 FILED BY THIS RESPONDENT BEFORE MUNSIFF COURT IN O.S.102 OF 2000. EXT.R8(b) & © TRUE COPY OF TWO COUNTER AFFIDAVITS BOTH DTD. 27.1.2005 FILED BY THIS RESPONDENT TO IA 138 OF 2005 AND 139 OF 2005 BEFORE MUNSIFF COURT, MANJERI IN O.S.102 OF 2000. lgk M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 11863 OF 2005 ............................................ DATED THIS THE 22nd DAY OF JULY, 2008 JUDGMENT Petitioner is the plaintiff and respondents, the defendants in O.S.102 of 2000. Suit is one for partition. Petitioner is claiming 3/9 shares under an assignment deed executed by the husband of deceased Annakutty in his favour in 1999. Similarly, 6th defendant is claiming 1/9 share under an assignment deed executed by 7th defendant. Petitioner filed I.A.138 of 2005 for a direction to 7th defendant to be present in court to furnish his signature and to send document numbers 2283 of 1999 and 5245 of 1998 of S.R.O, Manjeri for an expert opinion on the signature of 7th defendant. I.A.139 of 2005 was filed to summon Mathew, the executant of document No.2283 of 1999 to be present in court to furnish his signature to be sent to the expert. I.A.140 of 2005 was filed to call for the two documents marked as Ext.B5 and B6 in O.S.422 of 2000, a suit instituted by 7th defendant. Under Ext.P2 order, learned Munsiff dismissed the application to send the documents to the expert, holding that at this stage, it is not necessary. Under Ext.P3 and P4 orders, the other WP(C) 11863/2005 2 applications were also dismissed, consequent to Ext.P2 order. This petition is filed under Article 227 of Constitution of India challenging Ext.P2 to P4 orders. 2. Learned counsel appearing for petitioner and respondent No.8 were heard. 3. On hearing the learned counsel, I do not find any reason to interfere with Ext.P2 and P3 orders. The prayer in I.A.138 of 2005 is to direct him to appear before the court and furnish the signature of 7th defendant, who is an attesting witness to document No.2283 of 1999 and the executant of document No.5245 of 1998, whereunder he transferred his right in favour of 6th defendant. The reason shown is the denial of execution of documents by defendants. Learned Munsiff found that though execution of document No.2283 of 1999 was disputed by the legal heirs of Annakutty, its execution could be proved other than by proving the signature by sending the documents to expert. Learned Munsiff did not foreclose the prayer of petitioner to send the documents to an expert. It was held that at this stage, it is not necessary. If after examination of the attesting witness to the document as well as the executant, WP(C) 11863/2005 3 court finds that signature of the executant is to be proved by getting the opinion of the expert on the identity of the signature seen in document No.2283 of 1999, Ext.P2 order will not stand in the way. Petitioner has no liability to prove execution of document No.5245 of 1998 and if at all it is for 6th defendant to prove the same. Therefore there is no reason to interfere with Ext.P2 order. 4. Similarly, under Ext.P3 order, learned Munsiff refused to summon the executant of document No.2283 of 1999 to appear before court to give his signature. Being not a party to the suit, court cannot compel the executant of the document to appear in court and provide his signature as sought for in I.A.139 of 2005. Hence there is no reason to interfere with Ext.P3 order also. 5. The argument of learned counsel is that learned Munsiff should have allowed I.A.140 of 2005, which was dismissed on the ground that under Ext.P2 and P3 orders, other petitions were dismissed and purpose of the petition is to make available Ext.B4 and B5 marked in O.S.422 of 2000 to be sent to expert for comparing the signature. If the documents are not to be sent to WP(C) 11863/2005 4 an expert as sought for in Ext.P2, there is no necessity to call for the documents for that purpose. If the case of petitioner is that Ext.B5 and B6 marked in O.S.422 of 2000 are necessary for comparing the signature by the court, in the suit, petitioner is at liberty to file a fresh petition for that purpose and Ext.P4 order will not preclude the court from calling for the records. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE lgk/-