IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 WP(C).No. 36287 of 2007(T) ---------------------------------------- (I.A.NO.2093/07 IN O.S.NO.264/2003 OF SUB COURT, PALAKKAD) PETITIONER: ------------------- P.D.VARGHESE, AGED 50 YEARS, S/O. DEVASSY, PAROKKARAN HOUSE, KALLINGALPADAM, KANNAMBRA, PANNIYANKARA POST, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.P.R.VENKETESH RESPONDENT: ----------------------- A.A.SUKOOR, AGED 40 YEARS, S/O. ATTAR RAWTHER, COURT ROAD, KATTUSSERY AMSOM, ALATHUR TALUK, PALAKKAD. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36287/2007 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.264 OF 2003 ON THE FILES OF THE SUB COURT, PALAKKAD. EXT.P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER. EXT.P3: COPY OF I.A.2093 OF 2007 ON 20/08/2007 FILED TO REFER THE DISPUTED SIGNATURE TO HANDWRITING EXPERT. EXT.P4: COPY OF THE JUDGMENT IN WP9C) NO.33769 OF 2007 DTD. 15/11/2007 PASSED BY THIS HON'BLE COURT. EXT.P5: COPY OF THE COUNTER TO EXHIBIT P3 APPLICATION ON 26/11/2007. EXT.P6: COPY OF THE ORDER PASSED ON 27/11/2007 IN I.A.NO.2093 OF 2007. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.36287 OF 2007 =========================== Dated this the 2nd day of September, 2008 JUDGMENT Petitioner is the defendant and respondent the plaintiff in the suit. Respondent instituted the suit for realisation of the amount due under a promissory note allegedly executed by the petitioner. Petitioner in the written statement denied the execution of the promissory note. He also raised a contention that the signatures seen in the promissory note is not his signature. Petitioner later filed I.A.2093/2007, an application to send the disputed promissory note to an expert for comparison with the admitted signature. When that petition was not disposed, petitioner filed W.P.(C)33769/2007 for a direction to dispose the same. Under Ext.P4 judgment this court directed the Sub Judge, to dispose I.A.2093/2007 before proceeding with the trial. Under Ext.P6 order the petition was dismissed. W.P.(C)36287/2007 2 This petition is filed under Article 227 of the Constitution of India challenging Ext.P6 order. 2. Notice issued to the respondent was returned as addressee left India. Notice was therefore directed to be given to the counsel appearing for respondent before the trial court. Petitioner produced a memo showing that notice has been served on the counsel. Still respondent did not appear. 3. Learned counsel appearing for petitioner was heard. 4. Under Ext.P2 written statement, petitioner specifically contended that he did not execute the disputed promissory note and the signature seen therein is not his signature. In such circumstance, when an application is filed by the petitioner to send the disputed document to an expert, learned Sub Judge was not justified in dismissing the application on the ground that it is belated especially when it is found that report of an expert is necessary. Though it is stated W.P.(C)36287/2007 3 that earlier petition was dismissed, learned counsel produced a copy of that order which shows that the application was not considered on merits. In such circumstance, Ext.P6 order is quashed. Learned Sub Judge is directed to send the disputed document to an expert with the admitted signature. Respondent is entitled to produce any other document containing the admitted signature of the petitioner. Learned Sub Judge is also competent to direct petitioner to produce any other document which contains the signature of petitioner so that it could also be forwarded to the expert for getting the expert's opinion. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006