(BY SRI. RAHUL S. REDDY, ADVOCATE) v. BANGALORE-560028

2. SRI. V. CHITTI BABU S/O LATE CHANGAM NAIDU AGED ABOUT 49 YEARS, BOTH ARE RESIDING AT NO.38/1, 22ND MAIN ROAD, PADMANABHANAGAR BANASHANKARI II STAGE, BANGALORE-560070. (BY SRI. RAHUL S. REDDY, ADVOCATE) …PETITIONERS Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA AND:

A.V. RAMESH S/O VISHWANATHAMURTHY AGED ABOUT 66 YEARS RESIDING AT CHARTERED AMBA PRASAD NO.3, BULL TEMPLE ROAD, CHAMARAJAPET, BANGALORE-560018.

SRI. VISHWANATHAMURTHY S/O A.C. LAKSHMINARAYANA SHETTY AGED ABOUT 84 YEARS RESIDING AT NO.117 "GOWRAVI", 5TH CROSS ROAD, SHASTRINAGAR, BANGALORE-560028 …RESPONDENTS - 2 - NC: 2024:KHC:51413 WP No. 33562 of 2024 THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN OS NO.1146/2010 ON THE FILE OF XLIII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-44) AND SET ASIDE THE ORDER DATED

28.10.2024 PASSED ON I.A FILED UNDER ORDER XXVI RULE 10-A READ WITH SECTION 151 OF CPC FILED BY THE RESPONDENT NO.1 IN O.S NO.1146/2010 ON THE FILE OF XLIII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-44) VIDE ANNEXURE-E AND APPOINT ANY HANDWRITING EXPERT FROM GOVT. FSL, MADIWALA, BANGALORE. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE R. NATARAJ ORAL ORDER The plaintiffs in O.S. No.1146/2010 on the file of XLIII Additional City Civil and Sessions Judge, Bengaluru, (henceforth referred to as the ‘Trial Court’) have filed this petition challenging the correctness of an order dated 28.10.2024 by which an application filed by the defendant No.1 under Order XXVI Rule 10A read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) for appointment of a handwriting expert as a Commissioner was rejected but liberty was granted to examine an expert as a witness. - 3 - NC: 2024:KHC:51413 WP No. 33562 of 2024

2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioners herein were the plaintiffs while the respondents herein were the defendants before the Trail Court.

The suit in O.S. No.1146/2010 was filed inter alia for specific performance of an agreement of sale. The suit was contested by the defendant No.1 who denied the execution of the agreement of sale.

When the suit was set down for evidence, an application was filed by the defendant No.1 under Order XXVI Rule 10A read with Section 151 of CPC., to appoint a handwriting expert to compare the signatures of the defendant No.1 found on the sale deed dated 31.08.2001 (Ex.D18), vakalath, written statement and gift deed (Ex.D26) with the signatures found on the agreement of sale dated 17.12.2008. This application was contested by the plaintiffs on various grounds.

The Trial Court rejected the said application in terms of the impugned order. However, while doing so, the Trial Court permitted the defendant No.1 to examine an expert, - 4 - NC: 2024:KHC:51413 WP No. 33562 of 2024 who had purportedly opined that the signatures found on the agreement of sale dated 17.12.2008 were not the signatures of the defendant No.1, as a witness.

Being aggrieved by the said observations and liberty granted by the Trial Court, the plaintiffs are before this Court.

Learned counsel for the plaintiffs contends that the expert who purportedly had given his opinion about the signatures of the defendant No.1 on the agreement of sale dated 17.12.2008 had not examined the original agreement of sale, but had given his report based on a photocopy. Therefore, he contends that Sri C. Aswathappa, who had given his report cannot be an expert and he cannot be cited as a witness.

I have considered the submissions of the learned counsel for the plaintiffs and perused the material on record.

If the defendant No.1 desires to examine a person, who had examined the agreement of sale and had given his report, the plaintiffs cannot obstruct the defendants from examining him before the Trial Court. However, the plaintiffs - 5 - NC: 2024:KHC:51413 WP No. 33562 of 2024 can discredit the trustworthiness of the witness by suggesting to him that he had not examined the original document and that his report was not based after verifying the original document. Since the suit is filed in the year 2010, it is not desirable to keep the litigation alive unendingly. Therefore, the Trial Court was in a way justified in permitting the defendant No.1 to examine Sri C. Aswathappa who according to defendant No.1 was a competent witness to depose about the signatures on the agreement of sale. However, it is open for the plaintiffs to establish that the evidence of the witness is not trustworthy and cannot be believed. Hence, the petition lacks merit and same is dismissed. Sd/- (R. NATARAJ) JUDGE SMA List No.: 1 Sl No.: 61