Muthalasseril Sree Durga Bhadra Devi Temple v. Sivanandan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 13TH DAY OF OCTOBER 2017/21ST ASWINA, 1939** **OP(C).No. 2964 of 2017 (O) --------------------------IA.155/2017 IN OS.71/2014 OF THE SUB COURT, KARUNAGAPALLY** ## **PETITIONERS/ PLAINTIFFS:** **------------------------** **1. MUTHALASSERIL SREE DURGA BHADRA DEVI TEMPLE, PULIYOOR VANCHI SOUTH, THODIYOOR VILLAGE, KATTILKADAVU P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT-690568, REPRESENTED BY TEMPLE TRUSTEE THE 2ND PETITIONER.** **2. DIVAKARAN, AGED 92 YEARS, S/O KRISHNAN, KANNAPATHITHARA, ADINADU SOUTH MURI, ADINADU VILLAGE, KARUNAGAPPALLY TALUK FROM MUTHALASSERIL VEEDU, PULIYOOR VANCHI SOUTH, THODIYOOR VILLAGE, KARUNAGAPPALY TALUK, KOLLAM DIST.690568.** **BY ADVS.SMT.T.S.MAYA (THIYADIL) SMT.K.A.SUNITHA** **RESPONDENTS/DEFENDANTS:** **----------------------** **1. SIVANANDAN, AGED 70 YEARS, S/O KUNJIRAMAN, MEENATHERIL, PULIYOOR VANCHI WEST, THODIYOOR VILLAGE, EDAKULANGARA P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT.690523.** **2. RAJENDRAN, AGED 51 YEARS, S/O KUNJU PANICKAN, THUNDIL VEEDU, THODIYOOR VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DIST.690568.** **3. THULASEEDHARAN, AGED 57 YEARS, S/O SREEDHARAN, ARYA BHAVANAM, KALLELIBHAGOM MURI, KALLELIBHAGOM VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DIST.690523.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **OP(C).No. 2964 of 2017 (O)** ## **---------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1**|<br>**TRUE COPY OF MINUTES BOOK OF THE COMMITTEE FOR THE**| ||**PERIOD 7.12.2011 TO 6.4.2014.**| |**EXHIBIT P2**|<br>**TRUE COPY OF PLAINT IN O.S. NO.71 OF 2014 OF THE**| ||**SUB COURT, KARUNAGAPPALLY.**| |**EXHIBIT P3**|<br>**TRUE COPY OF WRITTEN STATEMENT FILED BY THE**| ||**RESPONDENTS IN O.S NO.71 OF 2014.**| |**EXHIBIT P4**|<br>**TRUE COPY OF THE I.A NO.155 OF 2017 FILED BEFORE**| ||**THE SUB COURT, KARUNAGAPPALLY.**| |**EXHIBIT P5**|<br>**TRUE COPY OF OBJECTION FILED BY THE RESPONDENTS IN**| ||**I.A NO.155 OF 2017**| |**EXHIBIT P6**|<br>**TRUE COPY OF ORDER DATED 27.7.2017 IN I.A NO.155 OF**| ||**2017 IN O.S NO.71 OF 2014 PENDING BEFORE THE SUB**| ||**COURT, KARUNAGAPPALLY.**| |**EXHIBIT P7**|**TRUE COPY OF APPLICATION IN OS.71/2014 FILED BEFORE**| ||**THE SUB COURT, KARUNAGAPPALLY**| |**RESPONDENT(S)'**|**EXHIBITS**| |**-----------------------**|| **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANIL K.NARENDRAN, J.** =================== ## **O.P(C) No.2964 of 2017** ======================= Dated this the 13[th] day of October, 2017 ## **JUDGMENT** The petitioners, who are the plaintiffs in O.S No.71/2014 on the files of the Sub Court, Karunagappally has filed this original petition under Article 227 of the Constitution of India seeking an order to set aside Ext.P6 order dated 27.07.2017 of the said court in I.A No.155/2017 in the said suit. By the said order, the court below rejected Ext.P4 application made by the petitioners under Section 45 of the Evidence Act, 1872 seeking an order to send Ext.A1 Minutes Book containing the signature and handwriting of the third defendant and two others along with their admitted signature and handwriting to the Forensic Science Laboratory for expert opinion. The relief sought for in the said interlocutory application was opposed by the defendants by filing their objections. After considering the rival contentions, the court below by Ext.P6 order dated 27.07.2017 dismissed the said interlocutory application. Feeling aggrieved, the petitioners are before this Court in this original petition. O.P(C) No.2964 of 2017 2 2. On 11.10.2017, when this original petition came up for admission, after arguing for some time, the learned counsel for the petitioners submitted that the petitioners are proposing to move a proper application before the Sub Court to send the original of Ext.A1 Minutes Book for expert opinion and she sought for an adjournment. Accordingly, the matter was ordered to be listed on 12.10.2017 for admission. On 13.10.2017 the matter was adjourned to this day. Today, when the matter is taken up for admission, the petitioners have filed I.A No.1794/2017 producing therewith a copy of I.A No.429/2017 in O.S No.71/2014 filed before the Sub Court seeking an order to send the original of Ext.A1 Minutes Book containing the signature and handwriting of the third defendant and two others along with their admitted signature and handwriting to the Forensic Science Laboratory for expert opinion. 3. Heard the learned counsel for the petitioners/ plaintiffs. O.P(C) No.2964 of 2017 3 4. By Ext.P6 order dated 27.07.2017, the Sub Court rejected Ext.P4 application made by the petitioners under Section 45 of the Evidence Act seeking an order to send Ext.A1 Minutes Book containing the signature and handwriting of the third defendant and two others along with their admitted signature and handwriting to the Forensic Science Laboratory for expert opinion. 5. As per Section 45 of the Evidence Act, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts. 6. It is trite law that expert evidence under Section 45 and the Evidence Act is only an opinion, which could just corroborate the substantive evidence. Mere proof of signature cannot establish due execution of a document. It is essentially O.P(C) No.2964 of 2017 4 within the discretion of the court, depending on the facts and circumstances of each case, to seek expert opinion on comparison of the disputed handwriting or signature with the admitted handwriting or signature under Section 45. An expert will be in a position to render his opinion on comparison of disputed signature or handwriting only when the original of the document containing the disputed signature is forwarded to him. Further, an effective comparison and verification of the disputed signature or handwriting is possible only if another document containing the admitted signature or handwriting of the contemporary period is made available to the expert. 7. In the instant case, during trial PWs.1 to 7 were examined and Exts.A1 to A44 were marked on the side of the plaintiffs. On the side of the defendants, DWs.1 to 5 were examined and Exts.B1 to B29 were marked. The document marked as Ext.A1 is only a certified copy of of the Minutes Book and the signatures appeared in that copy are also not clear. The original of Ext.A1 has already been produced before O.P(C) No.2964 of 2017 5 the Munsiff's Court, Karunagappally in O.S.No.461/2014 and the petitioners have not taken any steps to summon the original document from that court. They have also not taken any steps to produce documents containing the admitted signature and handwriting of the third defendant and two others, of the contemporary period. After considering the rival contentions, the Sub Court found that the petitioners have filed I.A.No.155/2017 only to protract the matter. The Sub Court has also observed that, merely for the reason that the third defendant and others have denied their signature in Ext.A1, the said document need not be send for expert opinion and that, the court is not powerless to compare signature under Section 73 of the Evidence Act. It was in such circumstances that, the Sub Court dismissed I.A.No.155/2017 by Ext.P6 order. 8. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under O.P(C) No.2964 of 2017 6 Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 9. In **Sobhana Nair K.N. v. Shaji S.G. Nair (2016** **(1) KHC 1)** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution O.P(C) No.2964 of 2017 7 is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 10. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the Sub Court in Ext.P6 order while rejecting the relief sought for in I.A No.155/2017 cannot be termed either perverse or patently illegal, warranting an interference of this Court, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. In that view of the matter, the challenge made in this original petition against Ext.P6 order can only be repelled and I do so. 11. The learned counsel for the petitioners would point out that the petitioners have already filed I.A No.429/2017 in O.S No.71/2014 seeking an order to send the original of Ext.A1 Minutes Book containing the signature and handwriting O.P(C) No.2964 of 2017 8 of the third defendant and two others, along with their admitted signature and handwriting, to the Forensic Science Laboratory for expert opinion. Admittedly, the said application is one filed subsequent to the filing of this original petition. Therefore, this Court need not express anything about such an application made by the petitioners before the Sub Court and it is for the said court to deal with that application. In such circumstances, without expressing anything on the said interlocutory application, this original petition is dismissed, by upholding Ext.P6 order of the Sub Court in rejecting I.A No.155/2017 in O.S No.71/2014 . Sd/- **ANIL K.NARENDRAN, JUDGE** vgd