IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 WP(C).No. 2635 of 2010(O) ------------------------------------- (OS.NO.157/2002 OF SUB COURT, TIRUR) .................... PETITIONER: ------------------- MELEVEETTIL KUNHIKOYA, CHEKUTTY HAJI, THIROORANGADI TALUK, VALLIKKUNNU AMSOM DESOM, MALAPPURAM DISTRICT. BY ADVS. MR.K.RAMACHANDRAN, MR.S.SREEDEV. RESPONDENT: ---------------------- KUNHATHUTTY, D/O.CHOLAYIL KOYAKUTTY AMSOM,. THIROORANGADI TALUK, VALLIKKUNNU AMSOM, DESOM, MALAPPURAM DISTRICT. BY ADV. MR.C.RAJENDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON 24/03/2010, DELIVERED THE FOLLOWING: W.P.(C). NO.2635/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPORT OF THE SCIENTIFIC ASSISTANT (DOCUMENTS) FORENSIC SCIENCE LABORATORY, THIRUVANANTHAPURAM DTD. 08/04/09. EXT.P.2: COPY OF THE AFFIDAVIT IN SUPPORT OF THE APPLICATION NO. I.A. 2707/2009 IN O.S. 157/2002. EXT.P.3: COPY OF THE OBJECTION FILED BY THE RESPONDENT DTD. 17/09/09. EXT.P.4: COPY OF THE ORDER IN I.A. 2707/2009 IN O.S. 157/2002 DTD. 30/1/09. RESPONDENTS' ANNEXURES: ANNEXURE R1.(A): COPY OF THE PLAINT IN O.S. NO. 157/2002 ON THE FILE OF SUB COURT, THIRUR. ANNEXURE R1.(B): COPY OF THE AGREEMENT DTD. 04/07/2002. ANNEXURE R1.(C): COPY OF THE WRITTEN STATEMENT IN O.S. NO. 157/2002 ON THE FILE OF SUB COURT, THIRUR. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 2635 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of March, 2010. JUDGMENT This is a petition filed under Article 227 of the Constitution of India challenging the legality of Ext.P4 order passed by the Sub Court, Tirur. 2. O.S. 157 of 2002 pending before the Sub court, Tirur was instituted by the respondent herein. Petitioner is the defendant in the suit. The suit was one for specific performance. It is alleged that the petitioner herein had entered into an agreement for sale with the plaintiff in the suit and since the petitioner defaulted in performing his part of the contract, the suit was laid. The agreement was also produced along with the suit. 3. The petitioner, who was the defendant in the suit filed a written statement pointing out that he had not executed the agreement as alleged by the plaintiff. He disputed that the agreement was entered WPC. 2635/2010. 2 into by him as alleged by the plaintiff and pointed out that it is a concocted one. He infact claimed that his signature was obtained on certain blank papers by force and threat and probably the agreement has been executed by using one of the papers so obtained. He denied his signature in the last page of the agreement, ie., page No.6. 4. On the request made by the petitioner, the document was sent for expert's opinion to the Forensic Lab, Thiruvananthapuram. A report was obtained from there. Dissatisfied with the report, the petitioner prayed that the document be sent to another expert for getting an additional report. The petitioner filed I.A. 2707 of 2009 for the said purpose. 5. The respondent resisted the petition and pointed out that there was no necessity to send the document for expert opinion especially in the light of the contention taken in the written statement by the defendant. It is also pointed out that even assuming that the signature in the last page does not belong to the petitioner, that does WPC. 2635/2010. 3 not make much difference as far as the case is concerned. According to the respondent, it was only a delaying tactics adopted by the petitioner. 6. The court below after an elaborate consideration of the matter came to the conclusion that there was no necessity to send the document again for expert's opinion and dismissed the petition. The said order is assailed in this writ petition. 7. Learned counsel appearing for the petitioner pointed out that the court below was not justified in dismissing the petition. The reasons given are not sustainable in law. Unlike in the of a commission report, in order to seek a fresh report, the earlier report has to be set aside, in the case of opinion evidence, it is not necessary to do so. The petitioner is entitled to seek a second opinion and that right cannot be denied to him. In support of the above submission learned counsel relied on the decisions reported in Narayana Kekunnaya v. Vishnu WPC. 2635/2010. 4 Derinjathaya (1961 KLT 960) and Koragan v. Koran (1978 KLT 873). 8. Learned counsel appearing for the respondent took this court through the averments in the written statement and pointed out that nowhere in the written statement it had been stated that the signature of the petitioner had been forged. In fact, the claim of the petitioner was that he was threatened, forced and coerced to put his signature on certain blank papers and those papers were utilised to draw up an agreement for sale. That being the position, it is unnecessary to send the document for expert opinion. 9. On going through the written statement filed by the petitioner, it is seen that as rightly pointed out by the learned counsel for the respondent the main objection taken is that his signatures were obtained by force, threat and coercion and he had no intention to execute an agreement for sale. Of course, he has also stated that he has not executed any such agreement at all. The agreement WPC. 2635/2010. 5 consists of six sheets. In fact the petitioner denies his signature only on the last page, ie., 6th page. A perusal of the document shows that in the sixth page there is a small portion of the recital of the document and infact it is the concluding portion of the schedule of the property in respect of which the agreement has been entered into. The main contention taken by the petitioner before the court below was that the document was not executed by him as alleged and the signatures found on the 6th sheet did not belong to him. As contended by the learned counsel for the respondent, it is doubtful whether it was necessary at all to send the document for expert opinion in the first instance itself. Of course, the right of the petitioner to seek second opinion cannot be denied. But the question is whether it is necessary in the case on hand. Considering the nature of the contentions taken by the petitioner, the prayer seems to be a redundant one. 10. The lower court has pointed out that the expert's opinion is only an opinion evidence and the WPC. 2635/2010. 6 petitioner will have an opportunity at the time of trial to show that the opinion given by the expert is not correct or justified. The court below has also noticed that an elaborate report has been furnished by the expert and the contention taken by the petitioner to discredit the said report is without any basis. The court below thus concurred with the contention of the respondent that the attempt was nothing but to prolong the trial. There is no need to send the document for a second opinion. The findings and the conclusion of the court below cannot be faulted. In fact they are justified going by the records now available in the case. No grounds are made out to interfere with the impugned order. This writ petition is without merits and it is accordingly dismissed. P. BHAVADASAN, JUDGE sb.