SHIVANANDAIAH Vs. M S CHANDRAIAH

JUDGEMENT

(1.) The defendant filed these writ petitions against the order dated 17.01.2017 on I.A.No.VII made in O.S.No.130/2013 dismissing the application filed under Order 26 Rule 10-A r/w Section 151 of Code of Civil Procedure, by the defendant and against the order dated 27.11.2017 on I.A.No.VIII made in O.S.No.130/2013 dismissing the application filed under Order 6 Rule 17 of Code of Civil Procedure, by the defendant.

(2.) The petitioner/plaintiff filed a suit for recovery of money of Rs.1,14,420/- from the defendant together with current and future interest at 2% p.m. from the date of institution of the suit till recovery of entire amount, contending that the defendant has borrowed a sum of Rs.75,000/- from the plaintiff on 07.04.2011 for his urgent needs and agreed to repay the same to the plaintiff as and when demand made together with interest at 2% p.m. and executed a promissory note in favour of the plaintiff for the said amount of Rs.75,000/- on the same day. It is further case of the plaintiff that inspite of repeated demand, the defendant has not paid either any part of the principal amount or interest to the plaintiff. Therefore, the plaintiff filed the suit for recovery.

(3.) The defendant filed written statement denied the entire plaint averments and contended that he neither borrowed the loan nor executed any promissory note in favour of the plaintiff as alleged and sought for dismissal of the suit. When the matter was posted for defendant's evidence at that stage, the defendant/petitioner filed I.A.VII under Order 26 Rule 10-A r/w Section 151 of Code of Civil Procedure for appointment of Hand writing expert as Court Commissioner to refer and verify the signature of the defendant in Pro-note, contending that he has filed written statement and specifically denied his signature on the Pro-note, to prove the same it is necessary to send the disputed signature on the Pronote with his admitted signature to the hand writing expert, to verify the same and to file a report. The said application was opposed by the plaintiff and contended that the application filed is premature. Defendant filed the present application even without entering into the witness box is not tenable in law and there is no specific pleading by the defendant in his written statement with regard to the specific denial of his signature on the pro-note and that the evidence of plaintiff is completed and PW1 to PW3 have given their evidence with regard to execution of pro-note by defendant in favour of the plaintiff. Cross-examination of PW1 to PW3 was not made by the defendant with regard to the said pro-note. Therefore, sought for dismissal of the application.