IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 WP(C).No. 23606 of 2010(O) -------------------------- OS.173/2006 of SUB COURT,ATTINGAL .................... PETITIONER(S): ------------------------ RAJENDRAN PILLAI, S/O.CHELLAPPAN PILLAI, VISHNU BHAVAN, KULAMADA, KIZHAKKENELA CHERRY, PARIPPALLY VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT. BY ADVS. SRI.R.S.KALKURA, SRI.M.S.KALESH, SRI.HARISH GOPINATH, SMT.A.V.PRIYA, SRI.V.VINAY MENON, SRI.M.AJAY (IRUMPANAM). RESPONDENT(S): --------------------------- 1. MOHANDAS, S/O.VASUDEVAN PILLAI, KARUNA NIVAS, VETTIYARA, NAVAIKULAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT - 695 603. 2. AMBIKA KUMARI, W/O.MOHANDAS, KARUNA NIVAS, VETTIYARA, NAVAIKULAM VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT - 695 603. 3. SAHADEVAN, S/O.DIVAKARAN, ANIL NIVAS, SODAMUKKU, NEAR PULIKUZHI, VELAMANOOR, PARIPPALLY VILLAGE - 691 574. R3 BY ADVS. SRI.R.ANILKUMAR, SMT.A.ARSHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23606/2010 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SALE AGREEMENT DTD. 16/03/2006 EXECUTED BETWEEN THE PLAINTIFF AND DEFENDANTS 1 & 2. P2: COPY OF THE PLAINT IN O.S.NO.173 OF 2006 ON THE FILE OF SUB COURT, ATTINGAL. P3: COPY OF THE WRITTEN STATEMENT SUBMITTED BY DEFENDANTS 1 AND 2 IN O.S.NO.173 OF 2006. P4: COPY OF THE WRITTEN STATEMENT SUBMITTED BY 3RD DEFENDANT IN O.S.NO.173 OF 2006. P5: COPY OF THE APPLICATION AS I.A.NO.1123/2010 IN O.S.NO.173 OF 2006. P6: COPY OF THE APPLICATION I.A.NO.1121/2010 IN O.S.NO.173 OF 2006. P7: COPY OF THE APPLICATION IA NO.1122/2010 IN O.S.NO.173 OF 2006. P8: COPY OF THE ORDER DTD. 15/07/2010 IN I.A.NO.1121/2010 IN O.S.NO.173 OF 2006. P9: COPY OF THE ORDER DTD. 15/07/2010 IN I.A.NO.1123/2010 IN O.S.NO.173 OF 2006. RESPONDENTS' EXHIBIT: R3(1): COPY OF THE REGISTERED OF NAVAIKULAM SUB-REGISTRY. /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== W.P(C) No.23606 of 2010 ==================================== Dated this the 04th day of August, 2011 J U D G M E N T Second respondent is served, but there is no response. Notice to the first respondent is returned with the endorsement that first respondent left India. Since it is not disputed that property in question has been purchased by the third respondent who is appearing through counsel, notice to first respondent is dispensed with. 2. Petitioner is the plaintiff in O.S. No.173 of 2006 of the court of learned Sub Judge, Attingal which is for a decree for specific performance of an agreement for sale allegedly executed by respondents 1 and 2 in favour of petitioner. Even before the institution of the suit, respondents 1 and 2 transferred the property to the third respondent as per a sale deed. Respondents 1 and 2 filed written statement denying execution of the agreement and contending that it is a forged document. Third respondent contended that claim made in the plaint is not correct. Case was posted for trial in the list on 12.06.2010. On 23.06.2010 W.P(C) No.23606 of 2010 -: 2 :- petitioner filed I.A. No.1123 of 2010 to send the disputed document to the Expert for opinion along with sale deed No.2301 of 2005 which according to the petitioner contained signature of respondents 1 and 2 either as executant or as attesting witness. Petitioner also filed I.A. No.1122 of 2010 to remove the case from the list and I.A. No.1121 of 2010 to advance hearing of the case. Learned Sub Judge as per Ext.P9, order dismissed I.A. No.1123 of 2010 and rejected the prayer of petitioner to send the document to the Expert for opinion. Reasons stated by the learned Sub Judge is that there is no averment in the plaint that signature of respondents 1 and 2 in sale deed No.2301 of 2005 and the agreement are identical. Learned counsel for petitioner contends that the said reason is not sufficient to disallow the prayer in I.A. No.1223 of 2010. Learned counsel for third respondent contended that attempt of petitioner is only to protract the proceeding and even a perusal of the signature in the agreement would convince the court that it is not of the same person. Since an examination of the document with a naked eye itself would reveal its falsity, a report of the Expert is not required, it is contended. 3. Though report of the Expert is not conclusive in the W.P(C) No.23606 of 2010 -: 3 :- matter, certainly it is a piece of evidence to decide the dispute involved. I am not impressed by the reasons stated by the learned Sub Judge to disallow the prayer in I.A. No.1123 of 2010. I do not know under what circumstance petitioner was required to plead in the plaint that signature in the disputed agreement and signatures of respondents 1 and 2 in sale deed No.2301 of 2005 are identical. In the plaint what was required to be averred was only regarding execution of the agreement, failure on the part of respondent 1 and 2 to perform their part and willingness of petitioner to get the sale deed executed in terms of the agreement. I am not inclined to think that anticipating the plea that respondents 1 and 2 may make regarding execution of the agreement it was required for petitioner to plead in the plaint itself that the disputed signature in the agreement tallied with the signature of respondents 1 and 2 in sale deed No.2301 of 2005. 4. Now on the question whether the agreement is required to be sent to the Expert. Having regard to the dispute raised I am inclined to think that notwithstanding the power of court under Section 73 of the Evidence Act for comparison of the disputed signature with the admitted one, the documents are to W.P(C) No.23606 of 2010 -: 4 :- be sent to the Expert for opinion since the opinion of the Expert certainly will have a bearing in deciding the controversy. 5. But I must also bear in mind that the suit is of the year 2006 and respondents 1 and 2 have filed written statement sufficiently early. Request to send the disputed document to the Expert for opinion came only after the case was included in the list. Such procedure affects the functioning of the trial court and unsettle the work schedule of the court. Such conduct cannot be encouraged. As such I am inclined to allow the request of petitioner but on terms of heavy costs. Resultantly, Writ Petition is allowed in the following way: (a) Exhibit P9, order on I.A. No.1123 of 2010 in O.S. No.173 of 2006 the court of learned Sub Judge, Attingal is set aside and that application is allowed on condition that petitioner paid to the third respondent through counsel in this Court `5,000/- (Rupees Five thousand only) by way of costs within three weeks from this day and filed receipt to that effect. W.P(C) No.23606 of 2010 -: 5 :- (b) On compliance of the above condition I.A. No.1123 of 2010 will stand allowed and thereon learned Sub Judge shall take necessary follow up action to send the documents to the Expert for opinion as prayed for in I.A. No.1123 of 2010. (c) In case costs ordered is not paid as aforesaid, this Writ Petition will stand dismissed in confirmation of the order passed on I.A. No.1123 of 2010. THOMAS P. JOSEPH, JUDGE. vsv