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NC: 2026:KHC:6727

WP No. 6922 of 2022

HC-KAR

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5^TH DAY OF FEBRUARY, 2026

BEFORE

THE HON'BLE MS. JUSTICE TARA VITASTA GANJU

WRIT PETITION NO. 6922 OF 2022 (GM-CPC)

BETWEEN:

1. SMT. BYAMMA

W/O LATE KATAIAH,

AGED ABOUT 65 YEARS,

R/O BORAPPANAHATTI,

KASABA HOBLI, CHALLAKERE TALUK,

CHITRADURGA DISTRICT-577 522.

2. SRI PAPAIAH

S/O LATE KATAIAH,

AGED ABOUT 45 YEARS,

R/O BORAPPANAHATTI,

KASABA HOBLI, CHALLAKERE TALUK,

CHITRADURGA DISTRICT-577522.

…PETITIONERS

(BY SRI. SIDDAPPA B M., ADVOCATE)

AND:

SMT KATAMMA

W/O PAPAIAH,

AGED ABOUT 43 YEARS,

R/O BORAPPANAHATTI,

VEERADIMMANAHALLI MUZURE,

KASABA HOBLI,

CHALLAKERE TALUK 577522.

CHITRDURGA DISTRICT.

…RESPONDENT

(RESPONDENT SERVED)

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NC: 2026:KHC:6727

WP No. 6922 of 2022

HC-KAR

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF

THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE

ORDER PASSED BY THE LEARNED PRL. CIVIL JUDGE AND JMFC,

CHALLAKERE ON IA NO.10 IN OS NO.127/2013 DATED 8-3-

2022 PRODUCED AS ANNEXURE-E.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING

IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS

UNDER:

CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU

ORAL ORDER

1. The present petition seeks to challenge an order

dated 08.03.2022, passed by the Principal Civil Judge And

J.M.F.C., at Challakere, in O.S.No.127/2013 (hereinafter

referred to as ‘Impugned Order’). By the Impugned Order,

an application in I.A. No.10 filed by the

respondent/plaintiff under Section 45 of the Indian

Evidence Act 1872 (hereinafter referred to as ‘Evidence

Act’), has been allowed.

2. None appears for the respondent, despite service.

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NC: 2026:KHC:6727

WP No. 6922 of 2022

HC-KAR

3. Given the pendency of this matter and the interim

order granted by this Court on 12.04.2022, staying the

proceedings before the Trial Court and the limited issue

involved, this Court deems it apposite to hear and decide

the petition today.

4. The challenge in the present petition is to the

allowing of an application under Section 45 of the Evidence

Act filed by the respondent/plaintiff. The learned Trial

Court examined the application filed by the

respondent/plaintiff to send the Rectification Deed,

Exhibit-D2, as well as the Will, Exhibit-D24 for the purpose

of comparison of the left thumb impression of deceased

Kataiah, son of Nalli Kataiah. The applicant, the

respondent/plaintiff has in his application stated that she

has filed a suit for partition and separate possession,

however, the defendants are denying her rights over the

suits schedule properties, based on the Will dated

18.03.2003. Hence, it is necessary to do a comparison of

the thumb impression of the deceased Kataiah.

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NC: 2026:KHC:6727

WP No. 6922 of 2022

HC-KAR

5. The learned Trial Court examined the application and

found that the suit was filed for partition and separate

possession and that the genuineness of a thumb

impressions cannot be examined by a Court and thus has

sought to appoint an Expert to examine the documents at

Exhibits-D2 and D24.

6. The learned counsel for the petitioner submits that

the expert examination is not necessary since the

respondent / plaintiff can establish the same by cross-

examination as well.

7. The learned Trial Court has by the Impugned Order,

held that the Court cannot compare disputed signatures,

thus an Expert be appointed to compare the signatures.

The Impugned Order also sets out that the plaintiff ought

to have filed an application under Order 26 Rule 10 A of

the Code of Civil Procedure, 1908, (hereinafter referred to

as ‘CPC’) instead of Section 45 of the Indian Evidence Act.

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NC: 2026:KHC:6727

WP No. 6922 of 2022

HC-KAR

It further sets out that the wrong provision would not

preclude the Court from passing an order.

8. It is apposite to extract Section 45 of the Indian

Evidence Act and Order 26, Rule 10A of the CPC:

“Section 45

45. Opinions of experts - When the Court has to form

an opinion upon a point of foreign law, or of science

or art, or as to identity of handwriting [or finger

impressions], the opinions

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