## IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 12TH DAY OF JUNE 2017/22ND JYAISHTA, 1939
OP(C).No. 3264 of 2013 (O)
--------------------------AGAINST THE ORDER I.A.No.2129/2012 IN OS 131/2010 of PRINCIPAL SUB COURT, PALAKKAD DATED 10.7.2013
PETITIONER:
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MOHANAN, S/O SUBRAMANIAN PILLAI, RESIDING AT VELMURUGAN ILLAM, PETTAKADU, CHULLIMADA, PALAKKAD TALUK AND DISTRICT.
BY ADV. SRI.JACOB SEBASTIAN
RESPONDENT:
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BALASUBRAMANIAN S/O. LINGAPPA PILLA, KARUNA ILLAM No.16, SOUTH STREET, K.R. PURAM, COIMBATORE TALUK, COIMBATORE DISTRICT-641 043.
BY ADV. SRI.LIJU. M.P BY ADV. SRI.A.V.RAVI
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 3264 of 2013 (O)
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
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- P1. A TRUE COPY OF THE PLAINT IN O.S.No.131/2010 OF THE COURT OF THE PRINCIPAL SUBORDINATE JUDGE OF PALAKKAD.
- P2. A TRUE COPY OF THE WRITTEN STATEMENT IN O.S.No.131/2010 OF THE COURT OF THE PRINCIPAL SUBORDINATE JUDGE OF PALAKKAD.
- P3. A TRUE COPY OF I.A.No.2129/2012 IN O.S. No.131/2010 OF THE COURT OF THE PRINCIPAL SUBORDINATE JUDGE OF PALAKKAD.
- P4. THE TRUE COPY OF THE ORDER DATED 10-7-2013 IN I.A. No.2129/2012 IN O.S. No.131/2010 OF THE COURT OF THE PRINCIPAL SUBORDINATE JUDGE OF PALAKKAD.
## **RESPONDENT'S EXHIBITS:** NIL
TRUE COPY
P.S. TO JUDGE
dsn
## **ANIL K.NARENDRAN, J**
**--------------------------------------------------**
**O.P.(C)No.3264 of 2013**
**-------------------------------------------------DATED THIS THE 12[th] DAY OF JUNE, 2017**
## **JUDGMENT**
The petitioner is the defendant in O.S.No.131/2010 on the file of the Principal Subordinate Judge's Court, Palakkad, a suit for realisation of money filed by the respondent/plaintiff on the strength of an undertaking ('Lakshyam') alleged to have been executed by the petitioner/defendant agreeing to pay the respondent/plaintiff a sum of ₹3,00,000/- together with interest, when demanded.
2. The petitioner/defendant filed Ext.P2 written statement denying the execution of the said undertaking dated 12.8.2007, contending that the said document is a concocted one created misusing blank papers signed by the defendant about 25 years ago, and prepared with the active connivance of one Doraisamy Pillai.
3. Subsequent to the filing of Ext.P2 written statement, the petitioner/defendant filed Ext.P3 interlocutory application, i.e., I.A.No.2129/2012 seeking an order to send the disputed document (i.e., the undertaking dated 12.8.2007) produced by the respondent/plaintiff along with the suit for analysing and examining
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the age of the document, handwriting and signature with the admitted signature of the defendant and to call for a report from M/s. J.K. Consultancy having Branch Office at Begumpet, Hyderabad.
4. The respondent/plaintiff filed objection to the said application contending that the intention of the petitioner/ defendant is only to delay the trial of the suit and that there is no approved agency to conduct such an examination and to give expert opinion about the age of the paper used for creating the document, age of ink, age of writing, etc.
5. After considering the rival contentions, the Trial Court vide Ext.P4 order dated 10.7.2013 dismissed the said application. The reasoning of the Trial Court as contained in the last paragraph of Ext.P4 order reads thus:
“On consideration of the averments in the affidavit in support of the petition, the same in the objection and on consideration of the written statement contentions, I am of the view that this petition is unsustainable. The written statement contention gist is that the petitioner herein was admitted as a partner in the business conducted by one Doraisamy Pillai about 25 years ago at that time petitioner gave signed blank paper to Draisamy Pillai, that the
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plaintiff is only a name lender to that Doraisamy Pillai, the suit document might have been concocted by using those signed blank paper, that neither on 12.8.2007 nor on any other date he executed a document in favour of the plaintiff. It is to be noted that the petitioner has not placed any citation or authentic report that there exist an agency as stated by the petitioner which has the scientific technics and equipments to determine the age of the paper used to write a document, the age of the ink therein and the age of signature/handwriting therein. In the recent ruling the Kerala High Court has observed that no agency in India, presently to give such opinion. [Rajan vs. Madhusoodanakurup (2013 (2) KLT 759)]. Under the said circumstances, forwarding the suit document to the agency stated by the petitioner and seeking an expert opinion from it will be an unnecessary step which will protract the trial of the suit. Hence the petition is dismissed. No cost.”
6. Feeling aggrieved by Ext.P4 order of the Trial Court, the petitioner/defendant is before this Court in this Original Petition.
7. On 4.10.213, while admitting this Original Petition, this Court granted an interim stay of all further proceedings in O.S.No.131/2010 on the file of the Principal Subordinate Judge's Court, Palakkad for a period of three months. The said order was
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later extended until further orders on 20.10.2014.
8. Heard the learned counsel for the petitioner/defendant and also the learned counsel for the respondent/plaintiff.
9. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext.P4 order passed by the Trial Court by which the interlocutory application filed by the petitioner/defendant as I.A.No.2129/2012 was rejected by the said Court.
10. As I have already noticed, the suit filed by the respondent/plaintiff for recovery of money from the petitioner/defendant is on the strength of an undertaking dated 12.8.2007 alleged to have been executed by the petitioner/defendant agreeing to pay him a sum of 3,00,000/-₹ with interest, when demanded.
11. From Ext.P2 written statement filed by the defendant, it can be seen that the defendant has serious dispute as to the execution of such an undertaking. It was in such circumstances that he has filed Ext.P3 application to call for an expert opinion. However, the expert opinion sought for in Ext.P3 application is as
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to the age of the document, the age of the ink, signature, handwriting, etc.
12. In **Rajan v. Madhusoodanakurup (2013 (2) KLT 759)** , a learned Single Judge of this Court held that as there is no facility in the Forensic Science Laboratory for ascertaining the age of handwriting, the trial court was justified in rejecting the application to send a cheque for expert opinion to find out the age of the handwriting in the cheque. Para.10 of the said decision reads thus:
“10. In the case on hand, the scientific aspects were considered by the learned Magistrate in the impugned order and came to the conclusion that it is not possible to ascertain the age of the writings by sending it for expert opinion as there is no standardised scientific method available for that purpose. Further, this Court has considered the same question while deciding Criminal MC No.4763/2008 (Anil Babu v. Raj Kumar) and in that case, a report was obtained from the Forensic Science Laboratory, wherein it was stated that there is no machinery available in India to ascertain the age of the writings and only the question regarding the authorship of the person who put the signature and the writings, by comparing the signature with the standard signature sent for expert opinion, was answered. Under such circumstances and also considering the fact that there is no
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facility available in the Forensic Science Laboratory for ascertaining the age of the writings on the document, the lower court was perfectly justified in dismissing the application for sending Ext.P1 cheque for expert opinion to ascertain the age of the writings and the signature on the document.
13. It was after taking note of the principle laid down in the decision of this Court in Rajan's case (supra) that, the Trial Court dismissed Ext.P3 application by Ext.P4 order. The reasoning of the Trial Court in Ext.P4 order is neither perverse nor patently illegal, warranting an interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
In the above circumstances, the challenge made against Ext.P4 order fails. The Original Petition is accordingly dismissed. No order as to costs.
Sd/- **ANIL K.NARENDRAN, JUDGE**
dsn
True copy
P.S. to Judge
