HC-KAR NC: 2026:KHC:6727 WP No. 6922 of 2022 - 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH 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) HC-KAR NC: 2026:KHC:6727 WP No. 6922 of 2022 - 2 - 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. HC-KAR NC: 2026:KHC:6727 WP No. 6922 of 2022 - 3 - 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. HC-KAR NC: 2026:KHC:6727 WP No. 6922 of 2022 - 4 - 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. HC-KAR NC: 2026:KHC:6727 WP No. 6922 of 2022 - 5 - 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 upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger-impressions] are relevant facts. Such persons are called experts.” Order 26 Rule 10A “10 A. Commission for Scientific Investigation-(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of Rule 10 of this Order shall, as far as may be, apply in relating to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9.” 8.1. A plain reading of these provisions show that while Section 45 of the Evidence Act is a provision for the Court HC-KAR NC: 2026:KHC:6727 WP No. 6922 of 2022 - 6 - to appoint experts to examine handwriting or finger prints; Rule 10 A of Order XXVI of the CPC provides that the Court may issue a commission directing a person to enquire into an issue which requires scientific investigation by appointing a Commission. 9. The documents that are sought to be examined by an Expert are Exhibit-D2, which is the Rectification Deed as well as the Will, Exhibit-D24. The suit has been filed by the respondent / plaintiff seeking a relief of partition and separate possession over the suit schedule property. The respondent / plaintiff has based her title on a Will dated 18.03.2023 (Exhibit D24). The petitioners / defendants have denied that the plaintiff has any rights to the suit schedule property in contending that the plaintiff is a stranger. The learned Trial Court, after examining the documents, found that it was necessary to appoint an Expert to prove the signatures of the thumb impression on the documents in dispute. HC-KAR NC: 2026:KHC:6727 WP No. 6922 of 2022 - 7 - 10. There is no doubt, that the opinion of an Expert would at best be of evidentiary value to the plaintiff, however, the Will and the Rectification Deed would if under challenge, be required to be proved in accordance with law. To that extent, this Court finds that the Impugned Order does not require to be interfered with. 11. The writ petition is disposed of in the aforegoing terms. All pending applications stand closed. It is clarified that this order is passed without prejudice to the rights and contentions of both parties. Sd/- (TARA VITASTA GANJU) JUDGE JJ List No.: 1 Sl No.: 18 Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKA