NINGAWWA Vs. MAHADEVI AND SHEKAWWA

JUDGEMENT

(1.) HEARD learned counsel for the parties. By this writ petition, the petitioner has challenged the order dated 03.11.2012 passed by the Court below allowing the application filed by the respondent/plaintiff under Order XXVI Rule 10(a) of Code of Civil Procedure r/w Section 45 of the Evidence Act. By this application, the plaintiff sought reference of the disputed signature to the handwriting expert. Learned Judge for the reasons recorded in paragraph 8 and 9 allowed the application with costs. Paragraphs 8 and 9 reads thus: 1. Having heard the arguments submitted by both the sides, signature of the Balappa Hattarki on the Will is in dispute. Even though there is a delay in filing the application in view of the decision retted upon by the advocate for plaintiff it necessitates for appointment of a Court Commissioner for scientific examination of the signature of deceased Balappa Hattarki in order to arrive at just decision in this case. Of Course it appears that the plaintiff has unnecessarily drag on the matter. She could have filed this application immediately after the conclusion of the evidence but the plaintiff has taken sufficient time for canvassing argument. When the time was granted finally for submission of arguments these applications were came to be filed. It shows that plaintiff adopted delaying tactics, for that the plaintiff is liable for imposition of cost.

(2.) ON perusal of the materials, Balappa Hattarki used to sigh on the documents including the alleged Will. Under such circumstances only the signature of Balappa Hattarki is under dispute, so there is no necessary to call for his thumb impression Book from the Sub -Registrar office. If his admitted signatures only send for hand writing experts it will serve the purpose. If the thumb impression register is called from Sub -Registrar, again it will take plenty of time and which is not necessary. When the Balappa Hattarki used to sign, then there is no necessity to examine his thumb impression. Under such circumstances I am of the considered opinion that it is necessary to send the disputed signature of Balappa Hattarki along with his admitted signatures for Hand writing expert. The verification of thumb impression is does not loom large when Balappa used to sign the documents. Therefore, I answer point No. 1 in partly affirmative and point No. 2 in the Negative. 2. For the reasons recorded by the Court below for allowing the application and having considered that the Court below has exercised its discretion, in the facts of the case, I am not inclined to interfere with the impugned order in writ jurisdiction under Article 227 of the Constitution of India. Hence, the writ petition is dismissed. All contentions on merits of the parties are kept open to be considered in the course of hearing of the suit.