Petitioner is the plaintiff in O.S.No.28/2009 on the file of the IV Additional Senior Civil Judge, Mysore. Being aggrieved by the order dated 22-09-2012 made on I.A.No.15 filed under Order 26 Rule 10(A) of CPC, the petitioner has filed this writ petition.

2. The petitioner filed a suit seeking for specific performance of the agreement of sale dated 30-06-2008 and to direct the defendants to receive the balance sale consideration and to execute the sale deed or in the alternative refund the earnest money with damages. In the plaint, it was contended that husband of the first defendant and father of defendant No.2 Late Sri.Mir Ameenulla Khuraishi executed an agreement of sale in respect of the suit schedule property on 30-06-2008 for a sale consideration of Rs.27,00,000/-. As on the date of agreement, he received a sum of Rs.20,00,000/- and the balance sale consideration was agreed to be paid at the time of registration of the sale deed i.e., within a period of four months from the date of agreement of sale. However, the said Mir Ameenulla Khuraishi died on 04-08-2008. Though the defendants were aware of execution of the agreement of sale, they refused to execute the sale deed by receiving the balance sale consideration. The plaintiff issued legal notice to the defendants, for which they gave untenable reply. Hence, the plaintiff filed the suit for specific performance of the contract.

3. In pursuance of the notice issued by the Trial Court, the defendants entered appearance and filed written statement contending that the said Mir Ameenulla Khuraishi had not entered into an agreement of sale dated 30-06-2008 and that the alleged agreement of sale is a forged and fabricated document and sought for dismissal of the suit.

4. On the basis of the pleadings of the parties, the Trial Court framed necessary issues. The petitioner got examined himself as P.W.1, and examined the scribe of the agreement of sale and also one of the witnesses to prove the execution of the agreement of sale. The first defendant got examined herself as D.W.1 and denied the execution of the agreement of sale and also the signature on the said document. She further denied the signatures of her husband on Ex.P6 and Ex.P9. Further, during the course of examination of the first defendant, she got marked Ex.D1 which is said to be the FSL report in respect of signature of her husband on the agreement of sale. However, the Expert who had given the report was not examined nor an opportunity was given to the petitioner to cross-examine the said Expert. In view of that, the petitioner made an application I.A.No.15 under order 26 Rule 10(A) of CPC to appoint a Court Commissioner who is a competent Hand Writing Expert to compare the signatures of deceased Mir Ameenulla Khuraishi on the agreement of sale and Ex.P6 to Ex.P9 and to give a report.

5. The contesting respondents had filed objections contending that the signatures on the agreement of sale and Ex.P6 to Ex.P9 have already been referred to the Government Forensic Science Laboratory and the Expert had given an opinion on the agreement of sale and other documents. Hence, the question of referring the signatures once again to the Hand Writing expert does not arise and sought for dismissal of the application.

6. The Trial Court after considering the arguments addressed by both the parties held that in view of denial of execution of the agreement of sale, the burden is on the plaintiff to prove the agreement of sale. The plaintiff had examined the scribe of the agreement of sale and also one of the attesting witnesses. The first defendant examined herself and got marked the FSL Report as Ex.D1. Hence, once again referring the signature on the agreement of sale to the Hand Writing Expert does not arise and hence rejected I.A.No.15 as per the order impugned in this writ petition. Being aggrieved by the said order, the petitioner has preferred this writ petition.

7. Smt. M.D. Anuradha Urs, learned advocate appearing fo