IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30903 of 2008(D)
1. DEVASSIA EAPPEN, KAPPIL NADUCKUTHAZHE
... Petitioner
Vs
1. P.T.THOMAS, PLATHOTTATHIL HOUSE,
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.P.C.HARIDAS
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :15/06/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.30903 of 2008 - D
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Dated this the 15th day of June, 2009
J U D G M E N T
This writ petition is filed under Article 227 of the
Constitution of India seeking the following reliefs:
“i) To call for the records leading up to Ext.P13 and
set aside Exts.P12 and P13.
ii) To allow the prayers of the petitioner made in
Exts.P8 and P9.”
2. Petitioner is the defendant in O.S.NO.77/2006 on the
file of the Sub court, Pala. Respondent in this petition filed the
above suit for money based on a promissory note. A sum of Rs.5
Lakhs was given as a loan to the defendant by way of a cheque
and towards consideration of thereof, he executed a promissory
note, is the case of the plaintiff. The defendant resisted the suit
in which among other contentions he contended that the
promissory note was forged on blank signed papers which had
been collected from him by another person and impersonation of
the cheque was also made in the instrument. In short, he
disputed the liability under the suit claim denying of any
W.P.(C).No.30903 of 2008 – D
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transaction or execution of any document in favour of the
plaintiff. Defendant had also moved an application for forensic
examination of the cheque which then was summoned and
produced before the court to give an expert opinion as to the
authenticity of the signature appearing on the reverse side of the
cheque. On the basis of the directions issued by this Court in an
earlier writ petition, numbered as W.P.(C).No.2417/2007, the
court below forwarded the cheque for such forensic examination
to an expert. After such examination, the expert forwarded a
report to the court in which he stated that it is difficult to form a
definite opinion as there are similarities as well as dissimilarities
in the signatures. Ext.P7 is the copy of that report. In the light
of Ext.P7, the defendant again moved an application before the
court for sending the cheque and the documents bearing his
signatures to another expert to have a definite opinion on the
disputed question whether the cheque had been subscribed by
him or another person by impersonation. The plaintiff filed
written objection to that application. The learned sub Judge after
hearing both sides declined the request of the defendant to send
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the document again to another expert for examination. Ext.P12
is the copy of that order. Impeaching the correctness and
propriety of that order, the defendant has filed this writ petition
invoking the supervisory jurisdiction of this Court under Article
227 of the Constitution of India.
3. I heard the counsel on both sides.
4. Having regard to the submissions made and taking
note of the facts and circumstances involved, I find no
impropriety or illegality in Ext.P12 order passed by the learned
Sub Judge. The learned Sub Judge has noted that the
admissibility of the report of the handwriting expert can be
considered only after taking evidence in the case. It is further
clarified that the defendant can adduce evidence during the trial
of the suit that the report of the handwriting expert is
inadmissible. The court has not formed any opinion on the report
filed by the expert since such opinion can be formed only after
the parties are given opportunity to lead evidence in support of
their respective case. At a later stage, after taking evidence, if it
is found that the report is to be set aside and there is need to
W.P.(C).No.30903 of 2008 – D
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send it to again for forensic examination to another expert, it is
open to the court to do so and Ext.P12 order will not be a bar for
taking proceedings in that line. However, that course emerges if
only that is necessary for a fair adjudication of the dispute
involved in the suit. Whatever that be, at this stage, challenge
against Ext.P12 order will not lie invoking supervisory jurisdiction
of this Court as it relates to the evidentiary value of a document
to be considered and decided by the court below.
Subject to the above observations, this writ petition is
disposed of.
S.S.SATHEESACHANDRAN,
JUDGE.
bkn/-