- 1 - NC: 2025:KHC:16009 WP No. 3520 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 3520 OF 2020 (GM-CPC) BETWEEN: SRI KEMPABYRAIAH SON OF LATE SANNABYRAIAH AGED ABOUT 78 YEARS, RESIDING AT SIRIGANAHALLI VILLAGE SOLUR HOBLI MAGADI TALUK RAMANAGARA DISTRICT-562120 …PETITIONER (BY SMT.SREEVIDYA G.K., ADVOCATE FOR SRI. T N VISWANATHA, ADVOCATE) AND: 1. SRI HANUMANTHARAYAPPA S/O LATE MAYANNA AGED ABOUT 61 YEARS, R/AT YELACHAGUPPE VILLAGE TAVAREKERE HOBLI BENGALURU SOUTH TQ-562130 2. SMT LAKSHMAMMA D/O HANUMANTHARAYAPPA AGED ABOUT 34 YEARS, R/AT YELACHAGUPPE VILLAGE TAVAREKERE HOBLI BENGALURU SOUTH TQ-562130 3. SRI VIJAYAKUMAR S/O HANUMANTHARAYAPPA Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16009 WP No. 3520 of 2020 AGED ABOUT 40 YEARS, R/AT YELACHAGUPPE VILLAGE TAVAREKERE HOBLI BENGALURU SOUTH TQ-562130 4. SRI SUDARSHAN S/O HANUMANTHARAYAPPA AGED ABOUT 36 YEARS, RESIDING AT SIRIGANAHALLI VILLAGE, SOLUR HOBLI, MAGADI TQ RAMANAGARA DISTRICT-562 120 5. SMT PUTTAMMA W/O LATE M BYRAIAH AGED ABOUT 72 YEARS RESIDING AT SIRIGANAHALLI VILLAGE, SOLUR HOBLI, MAGADI TALUK-562 120 SINCE DEAD REPRESENTED BY LRS R-1 TO R-4. …RESPONDENTS (BY SRI.B.N.GOPALAKRISHNA, ADVOCATE, R-5 -DEAD, R-1 TO R-4 TREATED AS LRS VIDE ORDER DATED 09.09.2024) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.01.2020 PASSED ON I.A.NO.VII IN O.S.11/2012 ON THE FILE OF THE SECOND ADDITIONAL CIVIL JUDGE AND JMFC, MAGADI VIDE ANNEXURE-E AND ALLOW THE SAID APPLICATION FILED UNDER ORDER 26 RULE 10A R/W SECTION 151 OF CODE OF CIVIL PROCEDURE, 1908 SEEKING FOR APPOINTMENT OF COURT COMMISSIONER FOR SCIENTIFIC INVESTIGATION OF THE ADMITTED AND DISPUTED SIGNATURE OF M.BYRAIAH. - 3 - NC: 2025:KHC:16009 WP No. 3520 of 2020 THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN `B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL ORAL ORDER Plaintiff in a suit in O.S.No.11/2012 is before this Court being aggrieved by the order dated 29.01.2020 passed therein by the Additional Civil Judge and JMFC, Magadi, rejecting the application filed by the plaintiff under Order XXVI Rule 10(A) read with Section 151 of CPC (I.A.No.VII) by which the plaintiff had sought direction for referring documents, namely Registered Will dated 03.08.2002 produced and marked as Ex.D7 purportedly executed by Sri.Byraiah for the purpose of comparison and verification of signature found on Agreement of Sale dated 13.08.1982 produced at Ex.P5. 2. The above suit is filed by the plaintiff against the defendants for the relief of specific performance of an agreement of sale dated 13.08.1982-Ex.P5 stated to have been executed by one Sri.Byraiah and his daughter Smt.Ratnamma agreeing to convey the suit schedule property in favour of the plaintiff. The said Sri.Byraiah as well as his daughter Smt.Ratnamma stated to have passed away leaving behind the - 4 - NC: 2025:KHC:16009 WP No. 3520 of 2020 defendants as their legal representatives constraining the plaintiff to file the above suit seeking relief of specific performance against them. It appears that the defendants have disputed the signatures of said Sri.Byraiah and Smt.Ratnamma. Plaintiff has produced a registered will dated 03.08.2002-Ex.D7 stated to have been executed by Sri.Byraiah. Since there was denial of signature on the agreement dated 13.08.1982- Ex.P5, the plaintiff filed the above application seeking reference of the aforesaid two documents for signature verification. The trial Court referring to Section 73 of the Indian Evidence Act has opined that in terms of the said provision it has power to compare the admitted and disputed signatures. As such there was no requirement of appointing a Court Commissioner. Accordingly dismissed the said application. 3. Learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition submits that requirement of obtaining the opinion of the expert on the signature is necessary for effective and proper adjudication of the dispute between the parties. She relies upon the judgment of the Apex Court in the case of Thiruvengadam Pillai vs - 5 - NC: 2025:KHC:16009 WP No. 3520 of 2020 Navaneethammal and another reported in (2008) 4 SCC 530 and also the order of this Court dated 19.03.2025 passed in W.P.No.4619/2020 wherein this Court relying upon the aforesaid judgment had allowed the application for referring the signature for verification. Relying upon the same she seeks for allowing of the present writ petition. 4. Learned counsel for respondent fairly submits that the admitted and disputed signatures can be referred for verification as sought for. 5. Heard and perused the records. 6. In the light of the aforesaid factual aspects of the matter and in the light of the settled position of law with regard to caution to be exercised while exercising power under Section 73 of the Indian Evidence Act as already held by the Apex Court in the case of Thiruvengadam supra and in view of the submissions made by the learned counsel for the parties, petition is allowed, order dated 29.01.2020 passed in O.S.No.11/2012 on the file of Additional Civil Judge and JMFC, Magadi, is set aside and consequently application in I.A.No.VII is allowed. The trial Court is directed to refer Ex.P5 and Ex.D7 - 6 - NC: 2025:KHC:16009 WP No. 3520 of 2020 for verification of the signatures/handwriting of executants and shall obtain the report and thereafter proceed in accordance with law. Sd/- (M.G.S. KAMAL) JUDGE SBN List No.: 1 Sl No.: 4