MATHAPPAN Vs. VINODAN

JUDGEMENT

(1.) Petitioner who is not a party to OS 594/1998 but one of the defendants in the connected suit which is jointly tried by Sub Court, Thrissur filed this petition challenging Ext. P6 order passed by the learned Sub Judge in IA 4324/2004, an application filed by first respondent plaintiff for a direction to the petitioner to be present in Court to give his signature to be sent to the Forensic Science Laboratory for comparison of the signature seen in the agreement allegedly entered into by first respondent with second respondent. Under Ext. P6 order learned Sub Judge directed petitioner who is only an attesting witness to the disputed agreement dated 06/02/1996, to appear and give his signature to be forwarded to the expert. The petition was originally allowed without a speaking order and was challenged before this Court in WP (C) 32875/2004. As per Ext. P5 judgment the order was set aside and learned Sub Judge was directed to pass fresh order after considering the objections. It is thereafter Ext. P6 order was passed.

(2.) Learned counsel appearing for petitioner and first respondent were heard.

(3.) Learned counsel appearing for petitioner argued that what is sought to be proved by first respondent by sending the signature of petitioner to the expert is that petitioner attested the disputed agreement allegedly executed by second respondent defendant and as far as that agreement is concerned, petitioner has no role to play and in such circumstance, being a witness, petitioner cannot be compelled to give his signature to be sent to the expert for comparison and R.14 of Order XVI of Code of Civil Procedure will not apply. Learned counsel argued that proof of signature of the attesting witness to the document arises only when the conditions provided under S.71 of Indian Evidence Act is attracted and before evidence was recorded, question of proof of the attestation of the agreement does not arise and therefore Ext. P6 order is to be quashed.