The court reaffirmed that Section 73 of the Evidence Act does not empower the court to compel a party to write for comparison with disputed writings.

CAV ORDER

1. This Writ Petition has been filed seeking to quash the Order dated 23.11.2020 passed on I.A. No.5 in O.S.No.337/2009 on the file of the Principal Civil Judge & J.M.F.C Doddaballapur (for short, 'the trial Court').

2. The Petitioners 1 to 4 herein are Defendants no 2 to 5 before the Trial Court and the respondent, herein is the Plaintiff before the Trial Court.

3. The Brief facts of the case are as follows:

The Respondent has filed a suit against the Petitioners for specific performance of an alleged agreement dated 10.11.2006.

Respondent in the suit alleged that Sri. Arasappa, the deceased 1^st defendant along with his wife and children i.e., petitioners have entered into an agreement to sell in respect of the property bearing Sy. No. 23/2A of Menasi village, Kasaba Hobli, Doddaballapur Taluk, to an extent of one acre. The sale consideration was fixed at Rs. 2,00,000/- and an advance of Rs. 1,50,000/- was paid by the Respondent and remaining sum was agreed to be paid at the time of Registration.

However, the petitioners failed to perform their part of obligation and thus, suit was filed. Petitioners filed their written statement contending that it was not an agreement to sell and it was money transaction wherein the petitioners did not intend to sell the property at any point of time. They were taken by plaintiff to the Sub Registrar’s office saying that they were taken by plaintiff executing guarantee deed for the loan obtained by them. In fact, there was a panchayat held in the house of plaintiff and plaintiff in his own handwriting worked out the interest and gave it to the defendants/respondents.

During the course of cross examination, The petitioner’s counsel confronted the document wherein the plaintiff/respondent had worked out the interest on the amount received by the petitioners and the Respondent denied it. Then, the petitioner filed an application I.A.No. V under section 73 of the Evidence Act seeking the Trial Court to take the words and figures that are found in the confronted document before the Trial Court to enable the court to compare the both.

The Trial Court after hearing both the sides dismissed the application by an order dated 23.11.2020. Aggrieved by the same, petitioners have approached this court.

4. Heard counsels on both sides.

5. The Learned counsel for the petitioners would contend that the Trail Court has erred in dismissing the application holding that the court cannot dictate to the witness or party to write words or figures to use the same for comparison with any word and figures alleged to have been written by that person. It is also contended that the Section 73 of the Evidence Act is the only provision wherein the court is empowered to obtain the writings of witness or the party present in court to compare with the admitted one.

6. It was further contended that court erred in holding Sec.73 does not empower the court to direct any witness present before court to take such writing for purpose of its evidence or its own case or for the purpose of using said writing or words or writing of figures for the comparison for the disputed one. The Purpose of Section 73 is to obtain the writings such as figures and words to compare if they were written by the same person. Such being the case, court below has erred in dismissing the application.

7. It was also contended that the application was with a view that it would assist the court in doing complete justice to parties and not as held by the court below. Infact, the calculation written by the Respondent was confronted to him and the same was denied. When he was questioned whether he was ready to write words and figures as shown in the said document before the court, the Respondent agreed. Therefore, the trial court erred in dismissing the application.

8. Heard the learned counsel for both sides and perused the material on record.

9. It is observed that, on plain readin