M.P. Kuriaokose v. M.P Varghese @ Varkey and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 22[ND] DAY OF AUGUST 2023 / 31ST SRAVANA, 1945** **OP(C) NO. 1408 OF 2023 AGAINST THE ORDER/JUDGMENT OS 747/2011 OF I ADDITIONAL SUB COURT, KOZHIKODE** ## **PETITIONER/S:** M.P. KURIAKOSE AGED 59 YEARS S/O MUTTATH PAILY, MUTTATH HOUSE, PULPALLY P.O, SULTHAN BATHERY , WAYANAD, PIN - 673579 BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE LEO LUKOSE KAROL MATHEWS SEBASTIAN ALENCHERRY DERICK MATHAI SAJI ## **RESPONDENT/S:** 1 M.P VARGHESE @ VARKEY S/O MUTTATH PAILY, MUTTATH HOUSE, PULPALLY P.O, PULPALLY VILLAGE SULTHAN BATHERY TALUK, WAYANAD, PIN - 673579 2 PUTHALATH ISSAC S/O VARGHESE KOLANGAPPARA AMBLAVAYAL AMSOM DESOM SULTHAN BATHERY TALUK, WAYANAD, PIN - 673593 3 PUTHALATH KURIAKOSE S/O VARGHESE KOLANGAPPARA AMBLAVAYAL AMSOM DESOM SULTHAN BATHERY TALUK, WAYANAD, PIN - 673579 4 SMITHA GIRIDHAR W/O GIRIDHAR SREEJA BHAVAN KATCHERI AMSOM DESOM KATCHERY VILLAGE KOZHIKODE TALUK KOZHIKODE DISTRICT, PIN - 673006 5 P.K. PADMANABHAN S/O KUNHAMBUTTY NAMBIAR THIRUVANGAD AMSOM DESAM OP(C) NO. 1408 OF 2023 2 THALASSERY TALUK KANNUR DISTRICT, PIN - 670103 6 ABOOBACKER ADKKAVIL S/O CHIRAMMAL YOUSAF HAJI CHIRIAKKARA SAJI HOUSE THIRUVANGAD AMSOM DESOM THALASSERY TALUK KANNUR DISTRICT, PIN - 670103 7 CHATHOTH KAYYANDI ABDUL MAJEED S/O ABOOTTY HAJI MANAKKARA CHALIL HOUSE KATHIRUR AMSAM DESOM THALASSERY TALUK KANNUR DISTRICT, PIN - 676042 8 P.V. GEORGE S/O PUTHALATH VARGHESE KOLANGAPPARA AMBLAVAYAL AMSOM DESOM SULTHAN BATHERY TALUK, WAYANAD, PIN - 673593 9 RENU GEORGE S/O P.V GEORGE KOLANGAPPARA AMBLAVAYAL AMSOM DESOM SULTHAN BATHERY TALUK, WAYANAD, PIN - 673593 BY ADVS. NIRMAL V NAIR ROY CHACKO Noushad Thottathil NOORJI NOUSHAD(K/183/1994) ARYA SURESH(K/000975/2023) GEETHIKA J.(K/001348/2023) ARATHI PRABHAKARAN(K/001158/2022) ENCIL K. SABU(K/771/2023) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1408 OF 2023 3 ## **JUDGMENT** The original petition is filed challenging Ext.P15 order passed by the Subordinate Judge, Kozhikode in IA No.1/2023 in OS No.747/2011. 2. The relevant facts leading to Ext.P15 order in a narrow compass are: - (i) The petitioner has filed the above suit against the respondents for partition and setting aside a document. The suit is resisted by the respondents through Exts.P2 to P6 written statements. - (ii) The petitioner's case is that, his brother – the 1[st] defendant has forged his signature and thumb impression and executed Ext.P7 sale deed in favour of supplemental defendants 2 and 3. The defendants have contended that the petitioner has executed Ext.P7 sale deed for valuable consideration. (iii) To substantiate the petitioner's contentions, he OP(C) NO. 1408 OF 2023 **==> picture [7 x 9] intentionally omitted <==** filed IA No.4575/2015, to send the disputed document for expert opinion. - (iv) The court below, by Ext.P10 order, dismissed IA No.4575/2015. Although the petitioner challenged the said order before this Court in OP(C) No.86/2016, by Ext.P11 judgment this Court dismissed the original petition. - (v) The petitioner had challenged Ext.P11 judgment before the Honourable Supreme Court which was subsequently withdrawn by Ext.P12 order. - (vi) The petitioner then filed IA No.1/2023 (Ext.P13), for a direction to Mr. Khan Sahib K., finger print and handwriting expert, to examine the disputed document with the admitted documents containing the signature of the petitioner, by taking macro/micro photographs/images using Ridge Tracing Technology or another advanced technology, and give his opinion. The application OP(C) NO. 1408 OF 2023 **==> picture [7 x 9] intentionally omitted <==** was opposed by the 7[th] respondent through Ext.P14 written objection. - (vii) The court below, by the impugned Ext.P15 order has dismissed Ext.P13 application. - (viii) In the meantime, the petitioner has, on his volition, obtained Ext.P16 opinion from Mr.Khan - Sahib K. as regards the signature and thump impression reflected in Ext.P7 document. - (ix) Ext.P15 order is palpably wrong, illegal and unjust. Hence, the original petition. 3. Heard; Sri. S.Sreedev, the learned Counsel appearing for the petitioner, Sri.Nirmal V.Nair, the learned counsel appearing for the 1[st] respondent, Sri. Roy Chacko, the learned Counsel appearing for the 3[rd] respondent and Sri.Noorji Noushad, the learned Counsel appearing for the 7[th] respondent. 4. The question is whether there is any error in Ext.P15 order. OP(C) NO. 1408 OF 2023 6 5. The suit is one filed for partition and other consequential reliefs. The respondents have resisted the suit by alleging that the petitioner had executed Ext.P7 sale deed for valuable consideration to the supplemental defendants 2 and 3, on his own free will and consent. 6. On an earlier occasion, the petitioner had filed I.A.No.4575/2015, to send the disputed document for the expert opinion, to compare the signature and thumb impression on Ext.P7 deed with an admitted document. 7. The court below had dismissed the said application, which was challenged before this Court by filing OP(C) No.86/2016. ## 8. By Ext.P11 judgment, this Court held as follows: “5. Ext.P1 plaint was instituted in the year 2011. Initially, the petitioner only sought for partition and only against the 1" respondent. The 1" respondent filed Ext.P2 written statement on 23.02.2012, interalia, contending that he had become the owner of the plaint schedule property and he had sold the properties to the respondents 2 and 3, who in turn further alienated the properties to the respondents 4 to 9. OP(C) NO. 1408 OF 2023 7 6. Then, the petitioner amended the plaint by incorporating an additional prayer to set aside deed Nos.2876/82 and 2877/82 and also implead the respondents 2 to 9 as additional defendants. The respondent did not feel the necessity to send the deeds for expert opinion, even though the 1" respondent has specifically pleaded in the written statement that the petitioner is a party to deed No.2877/82. Instead, the petitioner maintained stoic silence. 7. The suit was listed for trial on 04.11.2015 and the petitioner was examined as PW1. He was confronted with deed No.2877/1982 of the SRO West Hill, during his cross-examination that he was coexecutant. It is at this point, that the petitioner got enlightened that the registered deed is fabricated, even though the contention was specifically pleaded in the written statement. If his present allegation that the deed was fabricated is genuine, he would have filed the application immediately on receipt of the written statement. Instead, the petitioner was in slumber for more than three years. I do not find any bonafides in the present application, which is only a ruse to protract the determination of the suit. I endorse the view of the court below in the impugned Ext.P7 order. There is no ground made out warranting the interference by this Court, in exercise of its supervisory powers under Article 227 of the Constitution of India. The original petition fails and is dismissed. As the suit is of the year 2011, the court below shall make every endeavour to consider and dispose of the suit, in accordance with law, as expeditiously as possible”. 9. Even though the petitioner challenged Ext.P11 judgment before the Honourable Supreme Court by filing SLP(C) No.24219/2022, the SLP was dismissed as withdrawn, by Ext.P12 order. ## 10. Immediately after Ext.P12 order, the petitioner OP(C) NO. 1408 OF 2023 8 ## filed Ext.P13 application seeking the following reliefs: “That this Hon'ble Court may be pleased to pass orders permitting Mr.Kahn Sahib K, finger Print and handwriting expert resident of Fingerprint and handwriting Analyisis Bureau, NEST, AMBALATHARA HOUSE, OPP. MOLMA, POONTHURA POST, TRIVANDRUM-26, PH: 9495246011, Email: dactygraphex@yah oo.com, to examine the disputed documents and the admitted documents containing signatures and thump impression by taking macro/micro photographs/images using Ridge Tracing Technology or any other standard prevailing technology and file a report within such period fixed by this Hon'ble Court and also permitting the said expert witness to take macro/micro photographs/images using Ridge Tracing Technology or any other standard prevailing technology to examine the thump impression and signatures of document Nos.2877/1982 and 2876/1982 and thump impression Register kept in the SRO”. ## 11. The application was opposed by the 7[th] respondent through Ext.P14 counter affidavit. ## 12. The court below after appreciating the rival ## pleadings held thus: “As already stated above, his prayer for sending the documents for expert opinion was earlier dismissed by the trial court, the Hon'ble High Court and he himself had withdrawn the special leave petition filed before the Hon'ble Supreme Court. Admittedly, the disputed documents were not sent for expert opinion yet. Then the prayer of the petitioner seeking to examine Mr.Khan Sahib, who cannot be considered as an expert witness in this case appears to be strange. Admittedly, this is an application filed under O.XVI of the CPC. As per O.XVI, a party to a suit can seek the relief of summoning a witness either to tender evidence or to cause production of documents if any in the custody of the witness. Here the disputed OP(C) NO. 1408 OF 2023 9 documents are not in the custody of Mr.Kahn Sahib who is cited as the expert witness. Admittedly, the disputed documents were not sent for any expert opinion and Mr.Khan Sahib hadn't examined those documents or give his opinion. Hence, he cannot be considered as an expert witness as far as this case is concerned. Hence, the prayer of the petitioner that Mr.Khan Sahib is to be examined as an expert witness is without any substance. The learned counsel for the petitioner produced the ruling of the Hon'ble High Court of Kerala in criminal MC No.1091/2013 dated 02.04.2013. This ruling of the Hon'ble High Court of Kerala has no application as far as the facts and circumstances of this case is concerned. The facts in criminal MC No.1091/2013 is entirely different. In that case, the disputed documents were already sent for comparison and a report was filed by Kerala State Finger Print Bureau, Pattom, Trivandrum. As per the opinion of the Finger Print Bureau the finger impressions are unfit for comparison, since the finger impressions are blurred and ridge characteristics are not discernible. Hence, sufficient ridge characteristics are not forthcoming to furnish a definite opinion. In the above criminal MC the court directed summoning of Mr.Khan Sahib only for clearing some doubts with respect to the finger prints. But in the instant case the situation is different. The prayer for seeking expert opinion was already rejected by the trial court and appellate court. Hence, the petitioner is barred from filing another application seeking the same prayer, whatever be the methods. Hence, this application is devoid of any merits and filed only to overreach the earlier findings of this court and the appellate courts. Hence this IA is dismissed with costs to the respondents/defendants”. 13. Indisputably, the petitioner's earlier application to send the disputed Ext.P7 document for expert opinion was rejected by the Trial Court and confirmed by this Court in Ext.P11 judgment holding that the petitioner was in a slumber for a period of more than OP(C) NO. 1408 OF 2023 10 three years. 14. A reading of Ext.P13 application reveals that the petitioner has sought for an identical relief that was prayed for in IA No.4575/2015, though it is couched in a different style and manner. Thus, it is only to be perceived that the petitioner's present endeavour is only to circumvent the findings in Ext.p11 judgment. 15. It is worth pointing out that although the court below rejected Ext.P13 application, by the impugned Ext.P15 order, as early as on 24.02.2023, the present original petition is filed in August, 2023. 16. After Ext.12 order, the petitioner has, on his own volition, purportedly sent the disputed documents to an expert and has received Ext.P16 report dated 07.06.2023. 17. Ext.P16 report has nothing to do with the prayer sought for in Ext.P13 application or has no relevance or significance to test the legality of Ext.P15 OP(C) NO. 1408 OF 2023 11 order. 18. The court below has rightly held that Ext.P13 application is hit by the principles of resjudicata and, therefore, the petitioner cannot aspire to seek for the very same relief in a fresh application. 19. In **Waryam Singh and another vs. Amarnath and another** [AIR 1954 SC 215], **Shalini Shyam Shetty and another vs.Rajendra Shankar Patil** [(2010) 8 SCC 329], **M/s.Garment Craft vs. Prakash Chand Goel** [(2022) 4 SCC 181] and a host of other judicial precedents the Hon’ble Supreme Court has enunciated the powers of the High Courts under Article 227 of the Constitution of India. It is well settled that the said power is to be sparingly exercised to keep the Courts of District Judiciary/ Tribunals within their bounds of authority and to see that they do their duty as expected of them in a legal manner. The power is restricted to the cases of serious dereliction of duty and flagrant violation of fundamental principles of law and OP(C) NO. 1408 OF 2023 12 justice, where if this Court does not interfere, a grave injustice will remain uncorrected. But, this does not mean that the said power is to be exercised indiscriminately, that too interfere with orders of the present nature. 20. On an overall analysis of the pleadings and materials on record and the exposition of the law in the afore cited precedents, I do not find any justifiable grounds to interfere with the impugned Ext.P15 order by exercising the supervisory powers of this Court under Article 227 of the Constitution of India. The original petition sans merits or substance is hence consequentially dismissed. **Sd/-** **C.S.DIAS JUDGE** rkc/22.08.23 OP(C) NO. 1408 OF 2023 13 ## **APPENDIX OF OP(C) 1408/2023** PETITIONER EXHIBITS |Exhibit P1|A TRUE COPY OF THE PLAINT DATED| |---|---| ||02.09.2011 IN OS 747 OF 2011 ON THE| ||FILES OF THE 1ST ADDITIONAL SUBORDINATE| ||JUDGE'S COURT, KOZHIKODE.| |Exhibit P2|A TRUE COPY OF THE WRITTEN STATEMENT| ||DATED 23.02.2012 FILED BY THE 1ST| ||DEFENDANT IN OS 747 OF 2011 ON THE FILES| ||OF THE 1ST ADDITIONAL SUBORDINATE| ||JUDGE'S COURT, KOZHIKODE.| |Exhibit P3|A TRUE COPY OF THE WRITTEN STATEMENT| ||DATED 04.11.2013 FILED BY THE| ||SUPPLEMENTAL DEFENDANTS 2 & 3 IN OS 747| ||OF 2011 ON THE FILES OF THE 1ST| ||ADDITIONAL SUBORDINATE JUDGE'S COURT,| ||KOZHIKODE.| |Exhibit P4|A TRUE COPY OF THE WRITTEN STATEMENT| ||DATED 31.03.2015 FILED BY THE| ||SUPPLEMENTAL DEFENDANT NO 5 IN OS 747 OF| ||2011 ON THE FILES OF THE 1ST ADDITIONAL| ||SUBORDINATE JUDGE'S COURT, KOZHIKODE.| |Exhibit P5|A TRUE COPY OF THE WRITTEN STATEMENT| ||DATED 07.07.2014 FILED BY THE| ||SUPPLEMENTAL DEFENDANT NO 8 & 9 IN OS| ||747 OF 2011 ON THE FILES OF THE 1ST| ||ADDITIONAL SUBORDINATE JUDGE'S COURT,| ||KOZHIKODE.| |Exhibit P6|A TRUE COPY OF THE WRITTEN STATEMENT| ||DATED 05.06.2015 FILED BY THE| ||SUPPLEMENTAL DEFENDANT NO 7 IN OS 747 OF| ||2011 ON THE FILES OF THE 1ST ADDITIONAL| ||SUBORDINATE JUDGE'S COURT, KOZHIKODE.| |Exhibit P7|A TRUE COPY OF THE SALE DEED NO. 2877 OF| ||1982 OF WESTHILL SRO.| |Exhibit P8|A TRUE COPY OF THE PARTITION DEED NO.| ||2312 OF 1983 OF PULPALLY SRO EXECUTED| ||BETWEEN THE PETITIONER AND THE 1ST| OP(C) NO. 1408 OF 2023 14 RESPONDENT. - Exhibit P9 A TRUE COPY OF THE 10TH STANDARD SCHOOL CERTIFICATE DATED 25.06.1982 ISSUED BY DIRECTOR OF GOVERNMENT EXAMINATIONS TAMIL NADU. - Exhibit P10 A TRUE COPY OF THE ORDER DATED 21.12.2015 IN I.A 4575/2015 IN OS 747 OF 2011 ON THE FILES OF THE 1ST ADDITIONAL SUBORDINATE JUDGE'S COURT, KOZHIKODE. - Exhibit P11 THE TRUE COPY OF THE JUDGMENT DATED 29.09.2022 IN OP(C) 86 OF 2016 ON THE FILES OF THIS HON'BLE COURT. - Exhibit P12 TRUE COPY OF THE ORDER DATED 17.01.2023 IN SPECIAL LEAVE TO APPEAL NO 24219 OF 2022 ON THE FILES OF THE HONORABLE SUPREME COURT OF INDIA. - Exhibit P13 A TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 14.02.2023 IN I.A 1/2023 IN OS 747 OF 2011 ON THE FILES OF THE 1ST ADDITIONAL SUBORDINATE JUDGE'S COURT, KOZHIKODE. - Exhibit P14 A TRUE COPY OF THE OBJECTION DATED 16.02.2023 FILED BY THE 7TH RESPONDENT IN I.A 1/2023 IN OS 747 OF 2011 ON THE FILES OF THE 1ST ADDITIONAL SUBORDINATE JUDGE'S COURT, KOZHIKODE. - Exhibit P15 A TRUE COPY OF THE ORDER DATED 24.02.2023 IN I.A 1/2023 IN OS 747 OF 2011 ON THE FILES OF THE 1ST ADDITIONAL SUBORDINATE JUDGE'S COURT, KOZHIKODE. - Exhibit P16 A TRUE COPY OF THE EXPERT OPINION & REPORT DATED 07.06.2023 GIVEN BY SRI K KHAN SAHIB FORENSIC EXPERT, FINGERPRINT & HANDWRITING ANALYSIS BUREAU.