SIVADASAN Vs. LEELA

JUDGEMENT

(1.) DEFENDANT No.1 in O.S.No.134 of 2005 of the court of learned Additional Sub Judge, Palakkad is the petitioner before me challenging Ext.P7, order refusing to send the disputed agreement for sale to the expert for opinion on the disputed signature. Respondent No.1 sued petitioner and others for a decree for specific performance of Ext.P2, agreement for sale allegedly executed by petitioner and others. Petitioner and others filed Ext.P3, written statement denying execution of the agreement. They denied signature in the said agreement. It is the case of petitioner that he thought that respondent No.1/plaintiff would take necessary steps to get the document examined by the expert in the light of denial of execution of the agreement but, respondent No.1 did not take steps. Hence petitioner filed I.A.No.2773 of 2010 to send the document to the expert for opinion as aforesaid. Respondent No.1 filed Ext.P6, counter affidavit contending that the application is delayed. Learned Sub Judge has dismissed I.A.No.2773 of 2010 vide Ext.P7, order which is under challenge. Learned counsel for petitioner contends that petitioner has lost the opportunity to prove that himself or other defendants have not executed the impugned agreement.

(2.) IF due execution of the agreement is denied by petitioner and other defendants, burden of proving its due execution is on respondent No.1/plaintiff. True, that does not mean that defendants could not move any application to send the document for expert opinion. But, certain relevant aspects are to be born in mind; petitioner and other defendants filed written statement on 16-08-2005 and issues were framed on 02-04-2007. After posting the case for steps the case was taken up for evidence on 06-08-2010. On that day on the request of petitioner the case was adjourned on payment of cost to 10-08-2010. That day, PWs.1 and 2 were examined and Exts.A1 to A3 were marked. Then the case was posted for evidence of defendants on 13-08- 2010.That day, counsel for petitioner-defendant No.1 represented his inconvenience and got adjournment of the case on 17-08-2010 and then again to 30-08-2010. It is in the meantime that petitioner filed I.A.No.2773 of 2010. Learned Additional Sub Judge has referred to these circumstances and observed that attempt is to protract the proceedings and dismissed I.A.No.2773 of 2010.