- 1 - NC: 2025:KHC:10699 WP No. 50109 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL WRIT PETITION NO. 50109 OF 2019 (GM-CPC) BETWEEN: MR. DADAPEER SAB AGED ABOUT 57 YEARS S/O BUDAN SAB MUTTUGUPPI AGRICULTURIST, KYADAGIKOPPA UDUGANI HOBLI SHIKARIPUR TALUK SHIVAMOGGA DISTRICT -577 427. …PETITIONER (BY SRI. VARUN JAYAKUMAR PATIL.,ADVOCATE) AND: 1. HAZRAT ALI S/O MOINEEDIN SAB AGED ABOUT 45 YEARS 2. BALKESH BANU S/O HAZRAT ALI AGED ABOUT 40 YEARS 3. RAFIQ S/O HAZRAT ALI AGED ABOUT 24 YEARS Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10699 WP No. 50109 of 2019 4. MUMTAZ D/O HAZRAT ALI AGED ABOUT 22 YEARS 5. HABIB S/O HAZRAT ALI AGED ABOUT 21 YEARS 6. SMT. RESHMA D/O HAZRAT ALI AGED ABOUT 19 YEARS DEFENDANT NOS 1 TO 6 ARE R/O SHIRALKOPPA, DURGADA MANE MATADA GADDE ROAD SHIKARIPUR TALUK SHIVAMOGGA DISTRICT -577 427. …RESPONDENTS (BY SRI. R B DESHPANDE.,ADVOCATE FOR R1 TO R6) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED.31.08.2019 VIDE ANNEXURE.C PASSED BY THE 2ND ADDITIONAL CIVIL JUDGE AND JMFC SHIKARIPUR ON IA NO.11 IN O.S.NO.74/2013 AND ETC. 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 - 3 - NC: 2025:KHC:10699 WP No. 50109 of 2019 ORAL ORDER Petitioner, the plaintiff in O.S.No.74/2013, pending consideration on the file of II Additional Civil Judge and JMFC, Shikaripura (hereinafter referred to as 'the Trial Court') is before this Court being aggrieved by the impugned order dated 31.08.2019 passed by the Trial Court rejecting his application in I.A.No.11 filed under Order 26 Rule 10(A) seeking to send document Ex.P1 for signature verification with the admitted signatures found in the written statement, affidavit filed by the defendant in lieu of Chief Examination etc., 2. The above suit in O.S.No.74/2013 is filed by the plaintiff/petitioner herein against the defendants/respondents for relief of specific performance based on an agreement of sale dated 07.02.2007 produced and marked as Ex.P1, signature of defendant No.1 has been marked as Ex.P1. The execution of the said document has been denied by the defendants/ respondents, so also the signatures found on the said document. Under these circumstances, plaintiff/petitioner filed an application under Order 26 Rule 10(A) of CPC seeking opinion of the expert with regard to the admitted signatures and the disputed signatures. That the said application came to - 4 - NC: 2025:KHC:10699 WP No. 50109 of 2019 be resisted by the defendants/ respondents. That by the impugned order, the Trial Court rejected the said application merely on the premise that under Section 73 of the Evidence Act, 1872, the Court is vested with the power to compare the disputed signature with the admitted signature and the Court can come to its own conclusion and that there was no need for referring the disputed signature and the admitted signatures in every case and consequently passed the impugned order dismissing the application. Which is challenged before this Court. 3. Learned counsel for the plaintiff/petitioner relying upon the judgment of the Hon'ble Apex Court in the case of Thiruvendadam Pillai Vs. Navaneethammal and Another reported in (2008) 4 SCC 530 submits that the Trial Court has grossly erred in taking upon itself the responsibility of comparing the disputed signature with the admitted signature under purported exercise of its power under Section 73 of the Act, 1872 which practice is deprecated by the Hon'ble Apex Court in aforesaid judgment. He further submits that since the execution of agreement and the signature is vehemently - 5 - NC: 2025:KHC:10699 WP No. 50109 of 2019 disputed, an expert opinion for the proper adjudication of the matter is imperative. Hence, seeks for allowing of the petition. 4. Learned counsel for the defendants/respondents on the other hand justifying the order passed by the Trial Court submit that since Section 73 of the Act, 1872 provides power to the Court to compare with the disputed signature and the admitted signature and the Court is capable of arriving at its own conclusion, no error of jurisdiction or irregularities in passing the order can be found. Hence seeks for dismissal of the petition. 5. Heard and perused the records. 6. The Hon'ble Apex Court in the case of Thiruvendadam Pillai (supra) while dealing with the power of the Court under Section 73 of the Act, 1872 at paragraph No.16 has held as under: ''16. While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it - 6 - NC: 2025:KHC:10699 WP No. 50109 of 2019 goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.'' 7. No doubt, power to compare with the signatures is provided under Section 73 of the Act, 1872. It is always appropriate that an expert opinion in the matter be obtained, instead of venturing upon comparing with the signatures and handwriting as the Court lacks the technical knowledge and expertise in the matter. 8. In that view of the matter, petition is allowed with the following directions; - 7 - NC: 2025:KHC:10699 WP No. 50109 of 2019 ORDER (i). Impugned order dated 31.08.2019 is set- aside. (ii). I.A.No.11 filed under Order 26 Rule 10(A) seeking to send document Ex.P1 for signature verification is allowed. (iii). Trial Court to comply with the further requirement in accordance with law. Sd/- (M.G.S. KAMAL) JUDGE RL List No.: 1 Sl No.: 14