P.S. Sarvanath v. Mehaboob P.A.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 OP(C) NO. 2385 OF 2023 ``` ``` IN OS NO.31/2019 OF ASSISTANT SESSIONS COURT/ PRINCIPAL SUB COURT / COMMERCIAL COURT, KOTTAYAM ``` ## **`PETITIONER(S)/PETITIONER/DEFENDANTS:`** ``` P.S. SARVANATH AGED 51 YEARS, S/O SADANANDAN, PARVATHY VILLA, 5/370, THURAVOOR VILLAGE, THURAVOOR KARA AND POST, ALUVA TALUK, ERNAKULAM DISTRICT, PIN-683 572. ``` ``` BY ADVS. V.N.SANKARJEE M.M.VINOD M.SUSEELA VIJAYAN PILLAI P.K. KEERTHI B. CHANDRAN R.UDAYA JYOTHI C.PURUSHOTHAMAN NAIR SINEESH K.M. V.N.MADHUSUDANAN ``` ## **`RESPONDENT(S)/RESPONDENT/PLAINTIFF:`** ``` MEHABOOB P.A. AGED 58 YEARS, S/O ABDULLA, PUTHUKKAD HOUSE, PERUMPAIKADU VILLAGE, PERUMPAIKATTUSSERY KARA, S.H. MOUNT P.O., KOTTAYAM DISTRICT., PIN – 686006. ``` ``` BY ADVS. S. RANJIT GOKUL DAS V.V.H.(K/420-A/2005) RAJEEV.P.NAIR(K 495/1990) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C).NO.2385 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** ## **`J U D G M E N T`** ## _**`Dated this the 09[th] day of November, 2023`**_ ``` Ext.P6 order, which refused an application under Section 45 of the Evidence Act, is under challenge. The defendant preferred the subject application for comparison of the hand writing contained in Ext.P7 agreement and also those contained in P8, P9 and P10 cheques, on the premise that the hand writing contained in the said documents are not of the sole defendant, contrary to such claim in the plaint. The same was dismissed by the learned Sub Judge, holding that even if the document is not in the hand writing, the defendant cannot escape the liability, if the execution of the documents, including the ``` ``` O.P.(C).NO.2385 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** ``` cheques are proved. Another reason found by the learned Sub Judge is that the same was filed only to delay the disposal of the suit. ``` ``` 2.Heard the learned counsel for the petitioner and the learned counsel for the respondent. ``` ``` 3.The learned counsel for the petitioner invited the attention of this Court to paragraph No.3 of the plaint, wherein there is a specific assertion by the plaintiff that the endorsements in Ext.P7 agreement, especially on the reverse side of the same are made by the defendant in his own hand writing. Similarly, in paragraph No.7 of the plaint, it is stated that the defendant himself had written the endorsements and signed the cheques in question. It was in such circumstances that, the document was sought to be sent for comparison, in so far as the hand writing ``` ``` O.P.(C).NO.2385 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** ``` is concerned. The learned counsel would submit that both the reasons stated by the court below are untenable. ``` ``` 4.This application was seriously opposed by the learned counsel for the respondent pointing out that once the signature is admitted in these documents, the present attempt to send the documents for the purpose of comparison of hand writing is nothing but an abuse of the process, intended only to delay the disposal of the suit, as rightly found by the learned Sub Judge. It was also emphatically submitted that even if the opinion of the expert is obtained, the same can only constitute an opinion evidence, which is not binding on the Sub Court, in which direction, the learned counsel relied upon a judgment of the Supreme Court in Chennadijalapathi Reddyv. Baddam Pratapa Reddy (Dead) Through Legal ``` ``` O.P.(C).NO.2385 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** ## **`Representatives and Another [2019 KHC 6862].`** ``` 5.Having heard the learned counsel appearing on both sides, this Court is of the opinion that interference under Article 227 of the Constitution of India is required in the instant case. As rightly pointed by the learned counsel for the petitioner, there is specific assertion in the plaint that the impugned documents were made in the hand writing of the defendant, especially with respect to the endorsements contained in the reverse side of Ext.P7, as also, the writings in the cheques in question. The question that, upon admission of signature alone, whether the defendant will be bound to honor the liability, is a matter which cannot be gone into at this stage. The same has to be decided, based on facts and evidence; as also, by application of the relevant law. If the defendant ``` ``` O.P.(C).NO.2385 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** ``` takes a defence denying the plaintiff’s claim and seeks the documents to be compared, especially in view of the assertion afore referred, it may not be proper to shut the evidence sought for by the defendant. The question of delay in disposing the suit can be plugged by engaging a private expert, instead of sending the matter to the Forensic Science Laboratory (FSL), where there is every likelihood of delay. ``` ``` 6.In the circumstances, the Original Petition is allowed. Ext.P6 is set aside. It will be open for both the parties to prefer a panel of private experts before the learned Sub Judge, whereupon the Sub Judge will appoint a private expert and will send the documents for comparison, with necessary directions as regards the time limit, within which the work has to be completed. Thereafter, the ``` ``` O.P.(C).NO.2385 OF 2023 ``` **==> picture [37 x 9] intentionally omitted <==** ``` learned Sub Judge will make every endeavor to try and finish off the matter as expeditiously as possible, at any rate within a period of six months from the date of receipt of the report of the private expert. ``` ``` This original petition is allowed accordingly. ``` ``` Sd/- ``` ``` C. JAYACHANDRAN JUDGE ``` ``` Skk//17.11.2023 ``` ``` O.P.(C).NO.2385 OF 2023 ``` ``` ..8.. ``` ## **`APPENDIX OF OP(C) NO.2385/2023`** ## **`PETITIONER’S EXHIBITS:-`** |`EXHIBIT P-1`|`TRUE COPY OF THE PLAINT DATED 12.3.2019 IN O.S.`| |---|---| ||`NO.31/2019 ON THE FILE OF THE PRINCIPAL SUB`| ||`COURT, KOTTAYAM`| |`EXHIBIT P-2`|`TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER`| ||`CLAIM DATED 15.10.2019 IN O.S. NO.31/2019 ON`| ||`THE FILE OF THE PRINCIPAL SUB COURT, KOTTAYAM`| |`EXHIBIT P-3`|`TRUE COPY OF THE RESPONDENT'S WRITTEN STATEMENT`| ||`DATED 28.11.2019 IN O.S. NO.31/2019 ON THE FILE`| ||`OF THE PRINCIPAL SUB COURT, KOTTAYAM`| |`EXHIBIT P- 4`|`TRUE COPY OF APPLICATION WITH AFFIDAVIT DATED`| ||`11.2.2023 IN I.A. NO.5/2023 IN O.S. NO.31/2019`| ||`ON THE FILE OF THE PRINCIPAL SUB COURT,`| ||`KOTTAYAM`| |`EXHIBIT P-5`|`TRUE COPY OF THE COUNTER AFFIDAVIT DATED`| ||`5.1.2023 IN I.A. NO.5/2023 IN O.S. NO.31/2019`| ||`ON THE FILE OF THE PRINCIPAL SUB COURT,`| ||`KOTTAYAM`| |`EXHIBIT P-6`|`CERTIFIED COPY OF THE ORDER DATED 14.7.2023 IN`| ||`I.A. NO.5/2023 IN O.S. NO.31/2019 ON THE FILE`| ||`OF THE PRINCIPAL SUB COURT, KOTTAYAM`| |`EXHIBIT P-7`|`TRUE COPY OF THE AGREEMENT DATED 25.5.2015`| |`EXHIBIT P-8`|`TRUE COPY OF THE CHEQUE NO.128052 DATED`| ||`31.1.2019 FOR RS.30,00,000/- OF SOUTH INDIAN`| ||`BANK LTD., KARUKUTTY BRANCH`| |`EXHIBIT P-9`|`TRUE COPY OF THE CHEQUE NO.128053 DATED`| ||`31.1.2019 FOR RS. 25,00,000/- OF SOUTH INDIAN`| ||`BANK LTD., KARUKUTTY BRANCH`| |`EXHIBIT P-10`|`TRUE COPY OF THE CHEQUE NO.128054 DATED`| ||`31.1.2019 FOR RS.25,00,000/- OF SOUTH INDIAN`| ||`BANK LTD., KARUKUTTY BRANCH`| |`EXHIBIT P-11`|`COPY OF THE CASE STATUS OF EXHIBIT P1 SUIT AS`| ||`DOWNLOADED FROM THE OFFICIAL WEBSITE (E-COURT,`| ||`KOTTAYAM) AND PRINTED OUT`| |`EXHIBIT P-12`|`TRUE COPY OF I.A. NO.4/2023 DATED 4.1.2023 IN`| ||`O.S. NO.31/2019 OF THE PRINCIPAL SUB COURT,`| ||`KOTTAYAM`|