The High Court
Case Details
- 1 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.6499/2020 (GM-CPC) Digitally signed by RUPA V Location: High Court of karnataka BETWEEN: 1. SRI. M.K. SATHYA PRASAD S/O LATE M. KESHAVAMURTHY AGED ABOUT 64 YEARS. 2. SMT. S. SREEMATHI W/O MR. M.K. SATHYAPRASAD AGED ABOUT 61 YEARS. BOTH ARE R/AT NO.11/21 4TH CROSS, IST BLOCK JAYANAGAR, BENGALURU-560011. (BY SRI. SANJAY KRISHNA V, ADV.,) AND: 1. SMT. M.N. DIVYA W/O MR. K.A. LEELESH AGED ABOUT 44 YEARS. 2. SRI. K.A. LEELESH S/O LATE K.K. AYYAPPA AGED ABOUT 51 YEARS. BOTH ARE R/AT NO.12 4TH CROSS, RMV 2ND STAGE PATELAPPA LAYOUT NAGASHETTIHALLI BANGALORE-560094. …PETITIONERS - 2 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR
Legal Reasoning
3. SMT. N. PADMA W/O N. MUNISWAMY NAIDU AGED ABOUT 74 YEARS R/AT NO.6, ABHIJITH APARTMENTS IST CROSS, NAGASHETTIHALLI 14/15, AECS, IST MAIN BANGALORE-560094. 4. SRI. VINODHH REDDY S/O P.N. REDDY AGED ABOUT 57 YEARS R/AT NO.7, ABHIJITH APARTMENTS IST CROSS, NAGASHETTIHALLI 14/15, A.E.C.S. IST MAIN BANGALORE-560094. (BY SRI. LOKESHA M.K. ADV., FOR R1 & R2 V/O/DTD:29.09.2023 R3 & R4 ARE H/S) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT, ORDER OR DIRECTION IN THE LIKE NATURE, QUASHING THE COMMON ORDERS DATED 20.02.2020, PASSED BY THE LEARNED III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-25) IN O.S.NO.531/2012 UNDER ANNX-N, ON THE APPLICATION FILED U/O XXVI RULE 10-A OF CPC & ETC. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This petition is filed seeking the following reliefs: "Issue a writ in the nature of certiorari or any other writ, order or direction in the like nature, quashing the Common Orders dated 20.02.2020, passed by the learned III Addl. City Civil and Sessions Judge, Bengaluru (CCH- 25) in O.S.No.531/2012 under ANNEXURE-N, on the application filed under Order XXVI Rule 10-A of Civil Procedure Code, Application filed under Order XVI Rule 6 of the Civil Procedure Code and Memo filed under Order XII Rule 3 of the Civil Procedure Code and consequently allow the same in the interest of justice and equity." 2. Sri.Sanjay Krishna V., learned counsel for the petitioners submits that the petitioners have filed a suit against the respondent Nos.1 & 2 for decree of declaration that the sale deed executed by the petitioners in favour of respondent Nos.1 & 2 as void and order the same to be delivered up and cancelled. It is submitted that respondent Nos.1 & 2 have filed a written statement taking their stand. Thereafter, the trial Court framed the issues. The petitioners adduced the evidence and after conclusion of the trial, the petitioners-plaintiffs filed an application under Order XXVI Rule 10A of the Code of Civil - 4 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR Procedure, 1908, (CPC), read with Section 45 of the Evidence Act, 1872, seeking to refer Exhibit P-18, agreement dated 09.12.2010, and Exhibit P-2, registered sale deed dated 09.12.2010, to the handwriting expert to find out as to whether the signature found at Ex.P-2 and Ex.P-18 are one and the same with regard to respondent Nos.1 & 2, as the respondent Nos.1 & 2 have specifically denied the execution of the agreement at Ex.P-18 dated 09.12.2010. It is further submitted that the entire suit of the petitioners is based on the premise that the respondent Nos.1 & 2 have promised to provide two car parkings to respondent Nos.3 & 4 and for the same, a separate agreement of Memorandum of Understanding was entered on the same day i.e., on 09.12.2010, the day on which the sale deed in question was executed. It is also submitted that the respondent Nos.1 & 2 have now turned around and are saying that they are not obliged to honour the agreement and they have gone to the extent of saying that the agreement dated 09.12.2010 is not executed by them and the signatures on the said document is also not theirs. Hence, it is necessary to compare the signatures on Ex.P-18 and the admitted - 5 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR signatures of respondent Nos.1 & 2 on Ex.P-2, which is the basis to decide the issue involved in the suit. 3. It is contended that the petitioners have made a specific plea in the plaint that the respondent Nos.1 & 2 have made a promise to provide two parking slots and based on such promise, sale deed has been executed and now they have denied such a promise, which amounts to playing fraud on the petitioners. Hence, the suit for cancellation of sale deed is filed and by way of securing the expert's opinion on the admitted signatures and on the disputed signatures, the petitioners would be able to prove the contents of the plaint. Hence, he seeks to allow the application filed before the trial Court under Order XXVI Rule 10A of CPC and seeks to refer Ex.P-18 and Ex.P-2 documents to the handwriting expert to find out the signatures of respondent Nos.1 & 2 on those instruments. It is further contented that the trial Court, without appreciating the nature of dispute between the parties, has incorrectly recorded the finding under the impugned order that there is no ambiguity, hence, question of issuing commission would not arise by placing reliance on the decision of this Court in the - 6 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR case of Miss Renuka vs. Sri.Tammanna and Others1. It is also contented that in the said case, this Court has interfered with the exercise of power to appoint Court Commissioner solely on the ground that the trial was concluded in the said case. The question of ambiguity, without the evidence on record, would not arise. Hence, the said case has no application to the facts and circumstances of the case. 4. It is further contented that the specific issue is framed by the trial Court i.e., issue No.1, that whether the plaintiffs prove that the defendant Nos.1 & 2 obtained the sale deed dated 09.12.2010 from them by playing fraud to defeat their right in the suit car parking place. To prove the said issue, the oral evidence of the parties may not be sufficient. Hence, the petitioners were compelled to file an application seeking expert's view when the respondents have specifically denied the execution of the agreement at Ex.P-18 during the course of cross examination. Hence, he seeks to allow the application filed by the petitioners and refer the documents for experts view. 1 ILR 2007 KAR 3029 - 7 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR 5. Per contra, Sri.Lokesha M.K., learned counsel for respondent Nos.1 & 2 submits Ex.P-18 has been fully denied by the respondent Nos.1 & 2. It is submitted that Ex.P-18 is not the agreement entered into between the petitioners and respondent Nos.1 & 2, its between the respondent Nos.1 & 2 as the first party and M/s.Abhijith Apartments is the second party. When the petitioners themselves are not a party to the said agreement, they cannot seek to refer the said document for handwriting expert for examination. It is further submitted that on bare perusal of Ex.P-18, which is produced at Annexure-C to the petition, indicates that there are so many corrections in the said document and page Nos.1 to 4 are not signed by any of the parties and in page No.5 some signatures are found, which is disputed by respondent Nos.1 & 2. It is also submitted that the issue involved in the suit is altogether different and there is no bearing of the agreement of Memorandum of Understanding on the issue to be decided in the suit. Hence, he supports the order of the trial Court and seeks to dismiss the petition. 6. I have heard the arguments of learned counsel for the petitioners, learned counsel for the respondent Nos.1 & 2 - 8 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR and perused the material available on record. I have given my anxious consideration to the submissions advanced on both sides. 7. The petitioners filed O.S.No.531/2012 seeking a judgment and decree that the registered sale deed dated 09.12.2010 registered in the Office of the Sub-Registrar, Gandhinagar (Hebbal), Bangalore, as void and sought for cancellation of the same on the ground that the respondent Nos.1 & 2 have played fraud and got the sale deed registered. The averments of the plaint indicate that respondent Nos.1 & 2 have promised that they would provide two car parking space in the suit schedule property to respondent Nos.3 & 4 and on such promise, the sale deed dated 09.12.2010 came to be registered. It is the further case of the petitioners that the respondent Nos.1 & 2 have entered into an Agreement of Memorandum of Understanding with respondent Nos.3 & 4 on the same day i.e., on 09.12.2010. It is not in dispute that there are number of corrections found in the said agreement dated 09.12.2010 marked as Ex.P-18. Perusal of the said agreement Ex.P-18 indicates that there are so many corrections in the said - 9 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR agreement and neither any signatures are found near the corrections nor in page Nos.1 to 4; page No.5 of the said agreement indicates the names of respondent Nos.1 & 2 and it is also contended that respondent Nos.3 & 4 have also signed the said agreement and one of the petitioners has signed as a witness. 8. It is the specific case of the petitioners before the trial Court that the promise made by respondent Nos.1 & 2 for allotment of car parking in favour of respondent Nos.3 & 4 has been now denied by respondent Nos.1 & 2 i.e., after getting the sale deed registered in their favour on 09.12.2010, which amounts to fraud played on the petitioners. 9. This Court is not required to go into the issue with regard to the fraud; whether the respondent Nos.1 & 2 have played fraud or not or the correctness of the contents of Ex.P- 18. The only question which is required to be adjudicated in the present petition is the prayer of the petitioners seeking to refer Ex.P-18 and Ex.P-2 for handwriting expert to find out the signature of respondent Nos.1 & 2 on those instruments. - 10 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR 10. The trial Court, considering the rival submissions, has come to the conclusion that there is no ambiguity, hence, the commission cannot be issued. In my considered view, the trial Court has committed grave error in coming to such conclusion. 11. The respondent Nos.1 & 2 have specifically denied the execution of Ex.P-18 and the signature on the said document in the cross-examination of DW-2 and also in the written statement. 12. The application for seeking expert's opinion was filed after conclusion of the trial. Hence, in my considered view, taking expert's view with regard to the signatures of respondent Nos.1 & 2 on the admitted document i.e., Ex.P-2 and the disputed document Ex.P-18, would aid the trial Court to consider the case of the petitioners in its proper perspective. Such an exercise would definitely not cause any prejudice or harm to respondent Nos.1 & 2. It is also brought to the notice of this Court that respondent Nos.3 & 4 have also filed two suits independently against respondent Nos.1 & 2 based on such agreement. Considering the same, I am of the considered - 11 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR view that the interest of justice would be met if the application filed by the petitioners under Order XXVI Rule 10A of CPC read with Section 45 of the Evidence Act, is allowed and the documents at Ex.P-18 and Ex.P-2 are sent to the hand writing expert. 13. This Court in the case of Sri.Shadaksharappa vs. Kumari Vijayalakshmi and others2 has held that the Court should be liberal in considering the application for appointment of Court Commissioner seeking opinion of the expert as expert's opinion would aid the trial Court to arrive at a just conclusion and also to ascertain the evidence on record in its proper perspective. The said decision has been followed by this Court in the case of Dr.R.R.Kongovi vs. Dr.K.R.Manohar3 and held that the Court should be liberal in considering the application seeking for expert's view if the issue involved in the suit requires scientific investigation. In my considered view the case on hand needs scientific investigation. 2 3 ILR 2023 KAR 3983
Decision
W.P.No.29886/2019 disposed of on 07.07.2025 - 12 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR 14. In the evidence of DW-2, it has come that Ex.P-2 is deposited with the Financial Institution. If that is so, the trial Court shall summon the said document and send for the expert's opinion and after purpose is served, the document may be resubmitted to the Financial Institution. 15. Learned counsel for the petitioners submits that he will not press the impugned order passed on the Memo filed under Order XII Rule 3 of CPC. The same is placed on record. 16. For the aforementioned reasons, I am of the considered view that the trial Court has committed grave error in rejecting the application filed under Order XXVI Rule 10A of CPC. Hence, I proceed to pass the following: ORDER i. Writ petition is allowed. ii. The impugned common orders dated 20.02.2020 passed on the application filed under Order XXVI Rule 10-A of CPC read with Section 45 of the Evidence Act, 1872, and application filed under Order XVI Rule 6 of CPC are hereby set aside. - 13 - NC: 2025:KHC:24764 W.P. No.6499/2020 HC-KAR iii. Consequently, the application filed under Order XXVI Rule 10-A of CPC read with Section 45 of the Evidence Act, and the application filed under Order XVI Rule 6 of CPC are allowed. The trial Court is directed to refer Ex.P-18 and Ex.P-2 to the handwriting expert and secure the opinion. No orders to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 40