IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 WP(C).No. 23680 of 2008(R) -------------------------- AGAINST THE ORDER DATED 30/06/2008 IN IA 1602/07 IN OS.144/2003 of SUB COURT, OTTAPPALAM .................... PETITIONER: ------------ BABU JOSE, S/O.JOSEPH MUTHALAKUZHIYIL ,PULLUNDASSERY AMSOM AND DESOM OTTAPALAM TALUK BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS: ------------- MUHAMMEDKUTTY S/O.YOUSUF, CHERIKALLINMEL, VALLAPUZHA AMSOM AND DESOM, OTTAPALAM TALUK BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.23680 of 2008 ------------------------------- Dated this the 6th August, 2008. J U D G M E N T Petitioner is the plaintiff and respondent the defendant in O.S.No.144 of 2003, on the file of Sub Court, Ottapalam. That suit is filed for realisation of the amount due under a promissory note. Respondent in his written statement denied the case that he executed the promissory note and borrowed the amount. When the suit was included in the special list, petitioner remained absent and suit was dismissed for default. Later it was restored to file. Petitioner thereafter filed I.A.No.1602 of 2007, an application to send the disputed promissory notice to an expert to compare the signature with the admitted signature of the respondent. Under Ext.P3 order, petition was dismissed. It is challenged in this petition filed under Article 227 of the Constitution of India. 2. In the nature of the order to be passed in this petition, it is not necessary to issue notice to the respondent. 3. The learned counsel appearing for the petitioner was heard. W.P.(C) No.23680 of 2008 2 4. The learned counsel argued that in the written statement, there was no specific contention that signature seen in the promissory note produced along with the plaint is not the signature of the respondent. It was also pointed out that in paragraph 5 of the written statement, there was an explanation offered by the respondent that he had given his signature in a blank stamp paper to one Tamilian. Learned counsel submitted that it is in such circumstances petitioner did not file an application to send the promissory note to an expert originally and only later he was advised to file an application, and learned Munsiff dismissed the application on the ground that attempt is to protract the trial. The learned counsel also argued that petitioner being the plaintiff and no interim order is passed against the respondent, by protracting the trial, petitioner is not to gain anything and respondent will not suffer and in such circumstances, in the interest of justice, disputed promissory note should have been sent to an expert. 5. There is force in the submission. When the case of the petitioner depends on proof of execution of disputed promissory note, and respondent contended that he has nothing to do with the promissory note, identity of the signature in the disputed promissory W.P.(C) No.23680 of 2008 3 note is a relevant fact. As petitioner is not to gain anything by protracting the trial, learned Sub Judge should not have dismissed the application on the ground of delay. Ext.P3 order is therefore quashed. Learned Sub Judge is directed to re-consider I.A.No.1602 of 2007 and pass appropriate orders, in accordance with law. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.