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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8^TH DAY OF APRIL, 2019

BEFORE

THE HON’BLE MR. JUSTICE B. VEERAPPA

WRIT PETITION No.9839/2019(GM-CPC)

BETWEEN:

SRI. JOHNSON

S/O SRI. OBAYYA,

AGED ABOUT 48 YEARS,

CHURCH FATHER,

R/O BOMMANAKATTE,

BHADRAVATHI TALUK,

SHIMOGA DISTRICT-577640.

... PETITIONER

(BY SRI B.S. SHRINIVAS, ADVOCATE FOR

SRI SANJEEV B. L., ADVOCATE)

AND:

SRI SAMUEL,

S/O SRI SOLOMON,

AGED 48 YEARS,

R/O UJJINIPURA

KAGADANAGARA OISTM

BHADRAVATHI

SHIMOGA DISTRICT-577642.

... RESPONDENT

****

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227

OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

ORDER DATED 7.2.2019 PASSED BY THE PRINCIPAL CIVIL

JUDGE AND JMFC, BHADRAVATHI, SHIMOGA ON IA NO.12

IN O.S.NO.315/2015 VIDE ANNEXURE-E AND ALLOW THE

IA NO.12.

THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

O R D E R

The petitioner – defendant filed the present writ

petition against the order dated 7.2.2019 on I.A. No.12

made in O.S. No.315/2015 rejecting his application filed

under Order 26 Rule 10A r/w Section 75 of the Code of Civil

Procedure, to appoint an expert – Court Commissioner to

ascertain the age of ink in respect of signatures of the

defendant and writings made on suit pronotes and to call

for the report.

2. The respondent - plaintiff filed the suit for recovery

of Rs.4,49,800/- on the basis of two pronotes alleged to

have been executed by the petitioner - defendant. The

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petitioner – defendant filed the written statement and

denied the plaint averments. After completion of the

plaintiff’s arguments, the defendant filed the present

application under Order 26 Rule 10A r/w Section 75 of the

Code of Civil Procedure to appoint an expert – Court

Commissioner to ascertain the age of ink in respect of his

signatures and writings made on the suit pronote and to call

for the report. The said application was opposed by the

plaintiff. The trial Court considering the application and the

objections by the impugned order dated 7.2.2019 rejected

the application. Hence the present writ petition is filed.

3. I have heard the learned counsel for the petitioner.

4. Sri B.S. Shrinivas, learned counsel for the petitioner

– defendant contended with vehemence that the impugned

order passed by the trial Court rejecting the application

filed by the petitioner under Order 26 Rule 10A r/w Section

75 of the Code of Civil Procedure, is erroneous and contrary

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to the material on record and cannot be sustained. He

further contended that the trial Court failed to notice that

the petitioner has made out a prima facie case to appoint

an expert – Court Commissioner to ascertain the age of ink

in respect of the signatures and writings on the suit

pronotes.

Mere

appointing

the

expert

–

Court

Commissioner will not prejudice the case of the other side.

The trial Court ought to have allowed the application. He

further contended that the trial Court is not justified in

coming to the conclusion that the petitioner has not at all

disputed his signatures on the suit documents – Ex.P1 to

Ex.P4. The trial Court ought to have seen that the

petitioner has specifically pleaded the circumstances under

which he has signed and issued the blank pronotes to the

respondent and that to make unlawful gain by taking undue

advantage of his signatures, the respondent got filled up

the blanks in the pronotes and filed the suit. Therefore he

sought to allow the writ petition.

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5. Having heard the learned counsel for the

petitioner, it is not in dispute that the respondent who is

the plaintiff before the trial Court filed the suit for recovery

of Rs.4,49,800/- on the basis of two alleged pronotes

executed by the present petitioner. By careful reading of

the grounds raised in the present writ petition, it clearly