- 1 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.6845/2020 (GM-CPC) BETWEEN: 1. MRS. DEVAYANI SHETTY D/O SRI. MANI SHETTY AGED ABOUT 46 YEARS. 2. MRS. NANDINI SHETTY D/O SRI. MANI SHETTY AGED ABOUT 42 YEARS. BOTH ARE R/AT BANDARY HOUSE MUTHAKKE COMPOUND KODIALBAIL, MANGALORE-75. …PETITIONERS (BY SRI. ANANDARAMA K, ADV.,) AND: 1. GUJARATHI MAHAJAN ASSOCIATION REGISTERED SOCIETY MANGALORE REPRESENTED BY ITS PRESIDENT HARUBHAI M. BALDEV R/AT. BHOJA RAO LANE ALAKE, MANGALORE-575002. 2. SRI. BIPIN KUMAR M. RUPANI S/O MANILAL B. RUPANI AGED ABOUT 78 YEARS PAST PRESIDENT OF RESPONDENT NO.1 R/AT. GOPALAKRISHNA TEMPLE ROAD MANGALORE-575001. …RESPONDENTS (BY SRI. SANATH KUMAR SHETTY, ADV., FOR R1 & R2) Digitally signed by RUPA V Location: High Court of karnataka - 2 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS IN O.S.NO.111/2011 PENDING ON THE FILE OF THE COURT OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU. ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OR ORDER QUASHING ORDER DATED 25.02.2020 (ANNEXURE-L) PASSED BY THE COURT OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU ON I.A.NO.21 IN O.S.NO.111/2011 AND CONSEQUENTLY DISMISS I.A.NO.21 FILED IN O.S.NO.111/2011 IN THE INTEREST OF JUSTICE. THIS PETITION HAVING BEEN HEARD AND RESERVED ON 25.06.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL CAV ORDER This petition is filed challenging the order dated 25.02.2020 passed by the I Additional Senior Civil Judge & CJM, Mangaluru on IA.No.21 filed in OS.No.111/2011. 2. Heard. 3. Sri.Anandarama K., learned counsel appearing for the petitioners submits that the petitioner filed suit for declaration that the sale deeds are void, seeking cancellation of the sale deeds and permanent injunction. It is submitted that the defendants launched a criminal prosecution against the petitioners which has resulted in acquittal. It is further submitted that petitioner No.1 has been examined as PW.1 and - 3 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 she was cross examined on several dates by the respondents. Thereafter, an affidavit evidence of one Neelesh D. Singala was filed. The said witness, who is shown as an Education Committee Chairman & Legal Officer of respondent No.1- Association, is neither the president nor the secretary of the Association and he was examined as DW.1 and the petitioners cross examined him at length. Thereafter, the matter was posted for further evidence of defendants. The defendants, without adducing the evidence of respondent No.2, who was the former president of the respondent No.1-Association, filed an application seeking issuance of commission for expert opinion on the documents mentioned in the application. It is also submitted that the trial Court ignoring the objections filed by the petitioners, proceeded to allow the application prematurely as there is no evidence on record to prove issue Nos.3 and 4. It is contended that the respondent filing an application is an attempt to collect evidence by the respondent which is impermissible. The trial Court has failed to take note of the fact that the burden is on the defendant No.1 to prove that the alleged sale deeds have been executed by the petitioners in its favour after receiving the said considerations - 4 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 and without discharging the said primary burden by adducing the independent evidence, an application filed for expert opinion is impermissible. It is further contended that the application is filed only to overcome the finding of the criminal Court wherein, the opinion of the same expert has been disbelieved by the Trial Court in the criminal proceedings. In support of his contentions, he places reliance on the decision of the Gauhati High Court in the case of RAJIB BAROOAH V. PURNIMATI PLANTATION (P.) LTD.1 Hence, he seeks to allow the petition by setting aside the impugned order and by rejecting the application of the respondent. 4. Per contra, Sri.Sanath Kumar Shetty, learned counsel appearing for respondents supports the impugned order of the trial Court and submits that the respondents have adduced the evidence of DW.1 and the suit being for declaration that two sale deeds are null and void, it is very much necessary to find out the signatures and thumb impressions of the parties on the documents. Hence, they are sought to be sent for expert's opinion for complete adjudication 1 (2018) 2 GAUHATI LAW REPORTS 204 - 5 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 of the dispute between the parties. The signatures and thumb impressions found in the sale deeds are required to be compared with the admitted documents which are marked in the criminal proceedings to find out the truth with regard to the execution of the documents in question. Hence, he seeks to dismiss the petition. 5. I have heard the arguments of the learned counsel for the petitioners, the learned counsel for the respondents and meticulously perused the material available on record. I have given my anxious to the submissions advanced on both sides. 6. The case of the petitioners is that the petitioners filed a suit for declaration that two registered sale deeds dated 17.01.1994 in respect of the suit schedule property are fraudulent and null and void documents and for consequential prayer of permanent prohibitory injunction restraining the respondent No.1 from committing any trespass upon the suit schedule property. The respondents denied the averments made in the plaint and specifically denied the execution of the registered settlement deed dated 29.11.2010 by the deceased- plaintiff No.1 in favour of the present petitioners by contending - 6 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 that this document is created to deny the lawful title of the defendant No.1. The Trial Court framed the issues. The parties adduced the evidence. The respondent filed an application under Order XXVI Rule 10A of the Code of Civil Procedure, 1908, read with Section 47 of the Indian Evidence Act, 1871, seeking prayer to issue summons to the expert and secure the report on the documents mentioned in the application. The particulars of the documents referred in the application are 9 in number including two registered sale deeds dated 17.01.1994, the registered settlement deed dated 29.11.2010 and other documents. The contention of the petitioners is that two registered sale deeds dated 17.01.1994 are documents that are created by the respondent-Association. The contention of the respondents is that the deceased-plaintiff No.1 has executed the two sale deeds in their favour and to defeat their lawful ownership, the very said deceased-plaintiff No.1 executed the registered settlement deed dated 29.11.2010 by producing the old documents before the Sub-Registrar without disclosing the two registered sale deeds dated 17.01.1994. The respondents sought the expert's opinion with regard to the signature and thumb impression of the parties on the two registered sale - 7 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 deeds, registered settlement deed and other documents referred in the application. 7. The records also indicate that the respondents initiated criminal proceedings against the deceased-plaintiff No.1 and others and in the said proceedings, the prosecution secured the opinion of the expert on some of the documents. Be that as it may, the issue involved in the present suit is with regard to the execution of the two registered sale deeds dated 17.01.1994 by the deceased-plaintiff No.1 in favour of the respondent No.1 and the registered settlement deed dated 29.11.2010 and all these documents are marked during the course of evidence. The signature of the deceased-plaintiff No.1 and the signatures of the petitioners are found in the registered settlement deed dated 29.11.2010 and also on the two registered sale deeds dated 17.01.1994 alleged to have been executed by the deceased-plaintiff No.1 in favour of the respondent No.1. The said documents are required to be ascertained by the expert's view so that the controversy involved in the suit can be fairly adjudicated. The documents referred in the application filed by the respondents in I.A.No.21 - 8 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 are required to be sent to the handwriting expert and collecting his opinion is absolutely essential to decide the issues framed by the Trial Court. The expert's opinion on the documents would aid the Trial Court in arriving to the just conclusion. The opinion of the expert is one of the piece of evidence along with other evidence on record so that the Trial Court can record its finding on the issues. 8. In my considered view, the very object of Order XXVI Rule 10A of the CPC is to secure clarity on the disputed facts which would aid the Trial Court to decide the suit completely. In my considered view, the Trial Court, taking note of the nature of dispute involved between the parties and taking note of the evidence on record has rightly exercised its discretion to allow the application filed by the respondents seeking for expert's opinion. I do not find any error or perversity in the finding recorded by the Trial Court calling for interference in this petition. 9. This Court in the case of SRI SHADAKSHARAPPA Vs. KUMARI VIJAYALAXMI AND ORS.2 has laid down 2 WP No.201274/22 decided on 24.01.23 - 9 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 detailed guidelines to be followed by the Trial Courts while considering the application for appointment of Court Commissioner. Considering the enunciation of law laid down by this Court in the case referred supra, I am of the considered view that the Trial Court was fully justified in allowing the application. 10. The judgment of the Guwahati High Court relied on by the learned counsel for the petitioners referred supra has no application to the facts of the case on hand. In the said case, the Hon'ble Court has observed that if the appointment of Court Commissioner is allowed after the trial, it would help the plaintiff to fill up the lacunae if any, in the evidence of the plaintiff. However, in the case on hand, the Trial Court, on judicious application of mind after going through the evidence on record and taking note of the controversy involved between the parties, has rightly come to the conclusion that it is a fit case where the opinion of the expert is necessary. 11. For the aforementioned reasons, I proceed to pass the following: - 10 - HC-KAR NC: 2025:KHC:22826 W.P. No.6845/2020 ORDER The writ petition is devoid of merits and the same is accordingly dismissed. The dismissal of the petition would not come in the way of the petitioner raising the same as the ground in the appeal, in the event the petitioner fails in the suit. Sd/- (VIJAYKUMAR A. PATIL) JUDGE ABK/RV List No.: 2 Sl No.: 2