ORDER

This petition by the defendant Nos.1 and 4 in O.S.No.58/2017 on the file of the Principal Senior Civil Judge and JMFC, Hunsur [for short, ‘the trial Court’] is directed against the impugned order dated 06.01.2023 passed by the trial Court whereby, the application [I.A.No.XVI] filed by the petitioners-defendant Nos.1 and 4 under Order XXVI Rule 10(A) read with Section 73 of the Indian Evidence Act, 1872 and Section 151 of the Code of Civil Procedure, 1908 seeking comparison of the admitted signature of the plaintiff No.3 marked as Ex.P20(a) with her disputed signature alleged to be contained in Ex.D9 was dismissed by the trial Court.

2. Heard the learned counsels for the parties and perused the material on record.

3. The material on record discloses that the respondent Nos.1 to 3 – plaintiffs instituted the aforesaid suit against the petitioners-defendant Nos.1 and 4 and other defendants for partition and separate possession of their alleged share in the suit schedule immovable properties. During the course of evidence, the petitioners- defendant Nos.1 and 4 adduced oral and documentary evidence and marked the legal notice dated 06.06.2009 issued to plaintiff No.3 [PW.1] in the cross examination as Ex.D9 and on the ground that the said document contains the signature of PW.1. The plaintiff No.3 [PW.1] disputed/denied her signatures on Ex.D9 as a result of which, the petitioners filed the instant application for appointment of an expert to compare the admitted signatures of plaintiff No.3 [PW.1] on her vakalathnama - Ex.P20(a) with the disputed signatures of plaintiff No.3 [PW.1] on Ex.D9. The said application having been opposed by the respondent Nos.1 to 3, the trial Court proceeded to pass the impugned order rejecting the application, aggrieved by which, the petitioners are before this Court by way of the present petition.

4. A perusal of the impugned order will indicate that the sole ground on which the trial Court has dismissed the application is by coming to the conclusion that the affidavit in support of I.A.No.XVI does not make out valid and sufficient ground to refer the disputed signatures of PW.1 on Ex.D9 for comparison with her admitted signatures found on Ex.P20(a).

5. In this context, it is relevant to state that in the light of the specific stance/stand taken by the plaintiff No.3 [PW.1] in her cross examination during the course of which, she disputed/denied her signatures said to have been contained in Ex.D9, the signatures of the plaintiff No.3 [PW.1] on Ex.D9 which are disputed signatures require to be compared with her admitted signatures at Ex.P20(a) - vakalathnama by referring the same to a hand writing experts. At any rate, no prejudice would be caused to the respondent Nos.1 to 3-plaintiffs if the disputed signatures of PW.1 are sent for comparison, with the admitted signatures since both the parties would be entitled to file their objections to the Commissioner’s report and examine/cross examine her, if they so desire. Under these circumstances, the impugned order passed by the trial Court has clearly occasioned failure of justice warranting interference in the present petition.

6. In the result, I proceed to pass the following:

ORDER

a The petition is hereby allowed.

b The impugned order dated 06.01.2023 in O.S.No.58/2017 on the file of the Principal Senior Civil Judge and JMFC, Hunsur is set aside.

c The application [I.A.No.XVI] under Order XXVI Rule 10(A) read with Section 73 of the Indian Evidence Act, 1872 and Section 151 of the Code of Civil Procedure, 1908 filed by the petitioners – defendant Nos.1 and 4 is allowed.

d The trial Court is directed to take necessary steps to refer the disputed signature of plaintiff No.3 [PW.1] said to have been contained in Ex.D9 for comparison with the admitted signature marked as Ex.P20(a) - vakalathnama and secure report in this regard as expeditiously as possible.

e It is needless to state that the entire cost of obtaining the Commissioner’s report would be borne by