IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 OP(C).No. 3639 of 2011(O) ------------------------- AGAINST THE ORDER IN IA 1246/11 IN OS.22/2009 of SUB COURT, PAYYANNUR .................... PETITIONER ------------------------------ K.JAMEELA, D/O.ABOOTY, AGED 46 YEARS, ZAMZAM HOUSE, KOTTAYAM MALABAR, KOTTAYAM ANGADI (P.O), KUTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.RAJESH V.NAIR RESPONDENTS: --------------- 1. FOUZIYA KODIYIL, D/O.ABU, NAFEEZA MANZIL, GANDHI NAGAR, ST.JOSEPH'S SCHOOL, PUSHPAGIRI, TALIPARAMBA. 2. C.K.YUSUF, S/O.MANHU @ MAHIM, KELOTH HOUSE, NEERVELI P.O., KANNUR DISTRICT. ADV. SRI.R.SURENDRAN FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 3639 of 2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P-1 A TRUE COPY OF THE PLAINT IN O.S.22/09 FILED BEFORE THE SUB COURT, PAYYANNOOR. EXT.P-2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE IST DEFENDANT. EXT.P-3 TRUE COPY OF THE I.A.NO.1246/11 IN O.S.NO.22/2009 FILED BY THE PETITIONER BEFORE THE SUB COURT, PAYYANNOOR ALONG WITH THE DOCKET ORDER DATED 20.0711 OF SUB COURT, PAYYANNOOR. EXT.P-4 PHOTOCOPY OF THE JUDGEMENT PASSED BY THE HON'BLE HIGH COURT IN WRIT O.P. (CIVIL) NO.2960/11, DATED 29.09.2011. EXT.P-5 TYPED COPY OF ORDER PASSED BY THE SUB COURT, PAYYANNOOR IN I.A. 1246/11 DATED 04.11.2011. RESPONDENTS' EXHIBITS : NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3639 of 2011 --------------------------------------- Dated this 29th day of November, 2011 JUDGMENT Plaintiff in O.S.No.22 of 2009 of the Court of learned Sub Judge, Payyannur challenges Ext.P5, order whereby a request to send the disputed agreement to the expert was deferred. 2. According to the petitioner, she had not executed assignment deed No.2443 of 1996 in favour of the first respondent and sought a declaration to that effect and recovery of possession of the property on the strength of title she claimed. First respondent contended that petitioner executed the document in question and conveyed her right, title and interest over the property in his favour. Petitioner filed I.A.No.1246 of 2011 to send the document in question to the expert to compare the signature and thumb impression. That application was posted for objection on 19.07.2011 and then adjourned to 20.07.2011. The case was posted for trial in the list on 07.10.2011. Petitioner approached this Court with O.P(C). No.2960 of 2011 for a direction to the learned Sub Judge to dispose of the application before trial commenced. This Court directed learned Sub Judge to dispose of I.A.No.1246 of 2011. O.P(C).No.3639 of 2011 -: 2 :- Thereafter learned Sub Judge has passed Ext.P5, order where it is stated that after evidence is taken, if the Court finds that opinion of the expert is necessary the document will be send to the expert. 3. Learned counsel for petitioner submits that in the nature of contention petitioner has raised, opinion of expert is relevant for a decision of the case. Learned counsel for the first respondent contends that it is not as if learned Sub Judge has foreclosed the right of petitioner to seek the assistance of an expert but has only deferred the matter to a later stage, if it is found necessary. 4. True, that learned Sub Judge has not negatived the request of petitioner but, has only deferred the request. Learned Sub Judge has observed that if after evidence is taken the Court finds that assistance of an expert is necessary, the document could be send to the expert. There could be no doubt that opinion of expert is relevant for a decision of this case. Execution of the document is disputed by petitioner and asserted by the first respondent. Viewed in that line, I am inclined to think that a report of the expert could be called for but it is not necessary to wait for that until other evidence is recorded. It is appropriate O.P(C).No.3639 of 2011 -: 3 :- that with the opinion of the expert parties go for evidence. Resultantly this original petition is allowed. Ext.P5, order is set aside. I.A.No.1246 of 2011 will stand allowed. Learned Sub Judge shall send the disputed document to the expert with the specimen thumb impression and signature of petitioner. It shall be ensured that admitted signature of petitioner during the relevant time (of the document), as far as possible is obtained to be send to the expert for opinion. The necessary expenses shall be met by petitioner as learned Sub Judge directs. Trial of the case will stand deferred until report is received. (THOMAS P. JOSEPH, JUDGE) Sbna/-