IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32118 of 2009(O)
1. K.G.CHERIYAN,S/O.GEE VARGHESE,
... Petitioner
Vs
1. R.LALITHA BHAI,W/O.LATE K.M.ANANDAKUMAR,
... Respondent
2. RENJITH KUMAR,S/O.LATE K.M.ANANDAKUMAR.
3. MANOJ KUMAR,S/O.LATE K.M.ANANDAKUMAR.
4. SANOJ KUMAR,S/O.LATE K.M.ANANDAKUMAR.
For Petitioner :SRI.KKM.SHERIF
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :11/11/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.32118 OF 2009
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Dated this the 11th day of November 2009
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JUDGMENT
Petitioner is the defendant in O.S No.104
of 2005 on the file of the Sub court,
Pathanamthitta. Suit is for money based on an
agreement. Suit was instituted by the predecessor
of the present respondents in the writ petition.
Resisting the suit claim, the defendant had filed a
written statement. On the request made by the
defendant disputing his signatures in the document,
the court below has allowed transmission of that
document for expert opinion to the Forensic Science
Laboratory, Thiruvananthapuram. After receipt of
that report, the defendant again applied for
sending over the documents produced in the case to
another laboratory seeking the opinion of the
expert. Court below declined that request vide
Ext.P8 order. Propriety and correctness of Ext.P8
order is challenged in the writ petition invoking
W.P.(C).No.32118 OF 2009 Page numbers
the supervisory jurisdiction vested with this court
under Article 227 of the Constitution of India.
2. I heard the learned counsel for the
petitioner. Having regard to the submissions made
and taking note of the facts and circumstances
presented, and in particular Ext.P8 order passed
by the court below, I find no notice to the
respondents is necessary and it is dispensed with.
The request made earlier had no connection with the
relief canvassed by way of the second petition for
sending the documents for expert opinion and an
examination of such documents and opinion by the
expert is essential for fair and proper
adjudication of the case is the submission of the
learned counsel for the petitioner. Perusing
Ext.P8 order, I find there is no impropriety or
illegality as the defendant cannot be given more
than one chance for sending over the disputed
documents for examination of the expert. Further
more the opinion to be furnished by an expert under
W.P.(C).No.32118 OF 2009 Page numbers
Section 45 of the Evidence Act is not binding on
the court as it has got only persuasive effect.
The court has to examine the disputed questions
taking into consideration the entire evidence let
in the case and also the facts and circumstances
involved, to consider the merit of the case
canvassed by the rival sides and, then, to render a
decision in accordance with law. The court below
has also stated in Ext.P8 order that the request
was made by the defendant when the case came up in
the special list for trial. The learned counsel
submits that the suit had been dismissed, but later
restored. Whatever that be, it is noticed, Ext.P8
order had been passed on 22/08/2008 ie, more than
one year ago. In the given facts of the case, I
find no interference with Ext.P8 order is called
for. Writ petition lacks merit, and it is closed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
vdv P.A TO JUDGE