High Court of KeralaSingle Judge2010-03-24Writ petition dismissed; Sub Court’s order upheld.

MELEVEETTIL KUNHIKOYA, CHEKUTTY HAJI v. KUNHATHUTTY

Case / Petition Number:WP(C).No. 2635 of 2010 (O.S. 157/2002)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2010-03-24
Court Decision / Holding: Writ petition dismissed. Ext. P4 (order of the Sub Court, Tirur) does not call for a second expert opinion and stands. The High Court finds no legal error in the trial court’s discretion and upholds the order denying I.A. 2707/2009.
Final Disposition: Writ petition dismissed; Sub Court’s order upheld.

Parties to the Case

Appellants / Petitioners

Meleveettil Kunhikooya
Chekutty Haji

Respondents

Kunhathutty

Legal Representation & Advocates

Counsels for Petitioners

• Mr.K.Ramachandran
• Mr.S.SreeDev

Counsels for Respondents

• Mr.C.Rajendran

Case Synopsis & Summary

This writ petition challenges Ext. P4, an order of the Sub Court, Tirur, passed in a suit for specific performance (O.S. 157/2002) filed by the respondent against the petitioner. The petitioner, who denies executing the 6-page agreement for sale, contends that his signature on the last page was obtained under force and coercion, and that the document may have been fabricated from blank papers. At the petitioner’s request, the document was sent for expert opinion to the Forensic Science Laboratory, Thiruvananthapuram, and I.A. 2707/2009 sought a second opinion. The Sub Court held that there was no necessity to obtain a fresh expert report and dismissed the petition. The petitioner argues that in matters involving opinion evidence, the prior report is not sacrosanct and a second opinion can be sought; he relies on Narayana Kekunnaya v. Vishnu Derinjathaya (1961 KLT 960) and Koragan v. Koran (1978 KLT 873). The respondent counters that a second expert opinion is unnecessary and merely a delaying tactic, as the signature dispute can be resolved during trial with cross-examination. The High Court, exercising its jurisdiction under Article 227, affirms the trial court’s discretion, finds no legal error in denying a second opinion, and dismisses the writ petition. The suit itself remains pending before the Sub Court, Tirur.

Provisions of Law Cited

Article 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the court below erred in dismissing the I.A. 2707/2009 and that the right to seek a second forensic opinion is a recognized facet of dealing with opinion evidence. He submits that in cases involving expert reports, the earlier report need not be set aside to obtain a fresh opinion; a second opinion can be sought to test the reliability of the original finding. Reliance is placed on Narayana Kekunnaya v. Vishnu Derinjathaya (1961 KLT 960) and Koragan v. Koran (1978 KLT 873). He asserts that the denial of a second opinion amounts to an undue restriction on the truth-seeking function of courts and would cause unwarranted delay in the trial. respondents：The respondent argues that there was no necessity to send the document for a second expert opinion, especially since the plea centers on signature authenticity, which is mainly a matter of evidence and cross-examination at trial. The written statement asserts that the claim of forged signatures is not satisfactorily established and that the opinion evidence already furnished is sufficient. The respondent contends the second opinion would merely protract litigation and delay the resolution of the suit, and that the court below’s reasons are sound and legally sustainable.

Contentions of Respondents

The respondent contends that there was no necessity to send the document for a second expert opinion, especially since the plea centers on signature authenticity, which is mainly a matter of evidence and cross-examination at trial. The written statement asserts that the claim of forged signatures is not satisfactorily established and that the opinion evidence already furnished is sufficient. The respondent contends the second opinion would merely protract litigation and delay the resolution of the suit, and that the court below’s reasons are sound and legally sustainable.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Narayana Kekunnaya v. Vishnu Derinjathaya	1961 KLT 960	Mentioned Only	Cited by the petitioner in support of the right to seek a second opinion on opinion evidence; the High Court does not adopt or rely on the proposition as a formal ruling in the present context.
Koragan v. Koran	1978 KLT 873	Mentioned Only	Cited by the petitioner; the High Court does not treat it as establishing a binding rule in the instant issue.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against MELEVEETTIL KUNHIKOYA, CHEKUTTY HAJI v. KUNHATHUTTY and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **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., 6[th] 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.