IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 OP (FC).No. 78 of 2010(R) ------------------------- AGAINST THE ORDER DATED 31/07/2010 IN IA 1365/2010 IN OP.155/2010 of FAMILY COURT,KOZHIKODE .................... PETITIONER -------------------- VINU, D/O.JENSON MATHEW, CHEERAN HOUSE, MALAPRAMBA P.O., KOZHIKODE. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR RESPONDENTS: --------------- 1. REBIN SUNNY, NEDUMPARAMBIL HOUSE, MISSION QUARTERS, D.R.S.CLUB ROAD, THRISSUR - 681 001. 2. N.A.SUNNY, NEDUMPARAMBIL HOUSE, MISSION QUARTERS, D.R.S.CLUB ROAD, THRISSUR - 681 001. 3. MARY SUNNY, NEDUMPARAMBIL HOUSE, MISSION QUARTERS, D.R.S.CLUB ROAD, THRISSUR - 681 001. ADV. SRI.ALAN PAPALI FOR R1 TO R3 SMT.DHANYA P.ASHOKAN FOR R1 TO R3 THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** O.P(F.C) No.78 of 2010 ***************************** Dated this the 18th day of October, 2010 JUDGMENT BASANT, J. The dispute between the parties in this O.P(F.C), who are the contestants in O.P.No.155 of 2006 pending before the Family Court, is about the genuineness of Ext.P1 receipt. While it is the case of the respondents that the petitioner and her father have signed Ext.P1, it is the case of the petitioner that she and her father have not written any writings or affixed their signatures in Ext.P1. In an earlier proceedings between the parties, they had reached Ext.P2 agreement and in that agreement also, the question regarding the genuineness of Ext.P1 and the claims made ignoring Ext.P1 were agreed to be resolved by initiating appropriate proceedings. It is accordingly that O.P.No.155 of 2010 was filed by the petitioner herein against the respondents herein after Ext.P2 agreement. 2. In O.P.No.155 of 2010 before the Family Court, the respondents wanted Ext.P1 to be sent to the expert. The obvious O.P(F.C) No.78 of 2010 2 reason was to get expert opinion on the question of genuineness of the writings and signature of the petitioner herein and her father. The court below allowed that request in part. The prayer to send Ext.P1 to the expert was allowed, but it was allowed only for the purpose of getting expert opinion on the genuineness of the writings and signature of the petitioner. To be specific, the request to get expert opinion on the signature and handwriting of the father of the petitioner, who has also allegedly signed in Ext.P1 as one of the 3 mediators, was not allowed. 3. The petitioner then filed another application to secure opinion from the expert about the genuineness of the handwriting and signature of her father in Ext.P1 also. That request was turned down by Ext.P8 order. 4. Both the petitioner and the respondent want authentic expert opinion about the genuineness of the handwriting and signature of the petitioner's father, ie. Mediator No.2 Jenson Mathew. The court below appears to have felt that the said Jenson Mathew being not a party to the proceedings, such opinion cannot be secured under Section 45 of the Evidence Act. O.P(F.C) No.78 of 2010 3 5. The petitioner claims to be aggrieved by Ext.P8 order. She prays that Ext.P8 order may be set aside and her request to get authentic opinion on the genuineness of the signature and handwriting of her father in Ext.P1 may be granted. 6. The learned counsel for the respondent submits that the respondent has no objection against securing of such authentic opinion of the expert. But he now appears to take the stand that the said Jenson Mathew being not a party, such expert opinion cannot be secured. 7. We find no merit in the objections raised. The petitioner undertakes that admitted prior handwriting and signature of her father shall be placed before the Family Court. She further agrees that Sri.Jenson Mathew will appear before Court and furnish his specimen handwriting and signature. We do not find any merit in the contention that expert opinion sought is regarding the handwriting and signature of a non party in the disputed document and hence the same cannot be secured. This is a case where that person has no objection and the daughter of that person, one of the contestants, offers to make the relevant material for comparison available before the Court. O.P(F.C) No.78 of 2010 4 8. The dispute is about the genuineness of the handwriting and signature of Shri Jenson Mathew in the document Ext.P1. The fact is certainly relevant. If the handwriting and signature of Shri Jenson Mathew appearing in the disputed document Ext.P1 are genuine, or not genuine, that will have a crucial impact on the decision whether Ext.P1 is genuine. It is true that when a person is a non party it may in some cases poses difficulties on securing the specimen handwriting and signatures. That hypothetical problem can have no bearing on the decision in the instant case. The petitioner wants her father's handwriting and signature to be forwarded to the expert and she offers and undertakes to get the specimen and admitted signatures available. It was certainly wrong in the given circumstances to refuse permission. A stitch in time saves nine. We are hence persuaded to invoke our extraordinary constitutional jurisdiction to interfere with the impugned order now to prevent injustice and the unnecessary delay contributing to such injustice. 9. In the result: a) This O.P is allowed; O.P(F.C) No.78 of 2010 5 b) Ext.P8 order is set aside. The court below shall forward admitted/specimen signatures of the petitioner's father Jenson Mathew also to the expert and shall secure the opinion of the expert on that aspect also relating to Ext.P1. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/