The petitioners are before this Court seeking for the

following reliefs:

"i. To call for the records in R.A.No.71/2012 pending

on the file of Principal District and Sessions Judge,

Ramanagara;

ii. To call for the records in O.S.No.04/2012 on the

file of Hon'ble Senior Civil Judge and JMFC, Channapatna;

iii. To set aside the order dated 16.07.2016 passed

on I.A.No.II filed under Order XXVI Rule 10 of CPC in

R.A.No.71/2012 passed by Principal District and Sessions

Judge, Ramanagara;

iv. To allow I.A.No.II filed under Order XXVI Rule 10

of CPC filed in R.A.No.71/2012 by appointing Handwriting

Expert to compare signatures of first respondent found on

Ex.D-3 Pachayathi Parikathu with his other admitted

signatures with Exs.D-16, 17, 18, 75 & 76 with a direction

to give his opinion as to whether these signatures have

been made by one and the same person i.e., first

4

respondent (plaintiff in O.S.No.04/2012 on the file of

Hon'ble Senior Civil Judge and JMFC, Channapatna);

v. To pass such other order or Writ as this Hon'ble

Court deems fit to grant under the facts and circumstances

of the case;

vi. For costs of this writ petition in the interest of

justice."

2.

Though various reliefs have been sought for

essentially

what

has

been

challenged

is

order

dated

16.07.2016 passed on I.A.No.2 filed under Order XXVI Rule 10

of CPC in R.A.No.71/2012. The said application in I.A.No.2

was filed for the purpose of referring the signatures found on a

partition deed which had been marked in evidence before the

Trial Court to an Handwriting Expert to compare the signature

of the respondent No.1 herein who was the plaintiff therein

with the other admitted signatures in Exs.D-16, D-17, D-18,

D-75 and D-76 which has already been produced and marked

in evidence in the said suit. The First Appellate Court rejected

the said application on the ground that the application is

belated. Any such application ought to have been filed before

5

the Trial Court when the document had been disputed by the

plaintiff and as such, at a belated stage, the filing of the

application was not maintainable. Being aggrieved by the said

order, the petitioners are before this Court.

3.

Shri

S.Rajashekar,

learned

counsel

for

the

petitioners would submit that there are serious disputes as

regards the signature found on the unregistered Memorandum

of Partition dated 01.01.1985. The said Memorandum of

Partition goes to the root of the matter. If the signatures are

not verified by an Handwriting Expert, the interest of justice

would suffer. Though the application may be belated, the

application ought to have been allowed in the interest of

justice.

4.

Shri G.A.Srikante Gowda, learned counsel for

respondent Nos.1(a) and 1(b) submits that it is not only the

question of application being belated, during the cross-

examination of the plaintiff when PW.1 had denied the

6

existence of the said document, PW.1 had also consented to

the matter being referred to Handwriting Expert, the

petitioners elected not to seek for reference of the document

to the Handwriting Expert. Having so elected, it is only upon

the petitioners suffering an adverse judgment, that in the

appellate stage the application for referring to Handwriting

Expert under Order XXVI Rule 10 of CPC has been filed. This,

he submits was not permissible since the election by the

petitioners had occurred at the Trial Court stage.

5.

Notice to respondent Nos.1(c) and (d) though

served, none has entered appearance.

6.

Heard Shri S. Rajashekar, learned counsel for the

petitioners and Shri G.A.Srikante Gowda, learned counsel for

respondent Nos.1(a) and 1(b).

7.

The

short

question

that

would

arise

for

consideration in this matter is, whether the party to a litigation

if were to elect to accept the document and or not seek for

7

reference of a disputed document to an Handwriting Expert

where the signatures are denied could the same be raised at

an appellate stage?

8.

In the

present case on hand, the

suit in

O.S.No.4/2012

which

was

e