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K. Ramalingam Vs. M.V. Ramanathan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1024 of 1976
Judge
Reported inAIR1978Kant65; 1977(2)KarLJ436
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 26, Rules 9 and 10; Negotiable Instruments Act - Sections 87
AppellantK. Ramalingam
RespondentM.V. Ramanathan
Appellant AdvocateN.S. Satyanarayana Gupta, Adv.
Respondent AdvocateB. Subba Rao, Adv.
Excerpt:
.....for violation of an order of the court, such an application has to be taken up by the court as expeditiously as possible. such an application should get priority by the court. - 4. now the principle is that where a particular matter has already been the subject of investigation and a report has been submitted by a commissioner in that behalf, another commission for the same purpose should not ordinarily be issued unless upon valid grounds made out by the parties concerned and the previous report is unreliable and unhelpful and therefore should be set aside......that behalf, another commission for the same purpose should not ordinarily be issued unless upon valid grounds made out by the parties concerned and the previous report is unreliable and unhelpful and therefore should be set aside. in the present case, the learned munsiff has completely overlooked this principle and has acted in a casual manner. he has not given any reason as to what propelled him to make the impugned order. when there is already a report submitted in respect of the same matter, he should have considered whether or not there were valid grounds to act in the manner he did. but it is obvious he has not addressed himself to this aspect of the matter before passing the impugned order. in the view i take, the impugned order must be and is accordingly set aside and the matter.....
Judgment:
ORDER

1. This petition is directed against the order dated 26-5-1976 passed by the Principal, 1st Munsiff, Bangalore, allowing I. A. No. III filed under Order 26, Rule 9 r/w Section 151, C. P. C. by the defendant in O. S. No. 1782 of 1972 on his file. The prayer made in I. A. No. III and the impugned order read :--Prayer made in I. A. III :

'The defendant above named prays that another Commissioner may be appointed to examine the handwriting and the signature of the defendant preferably a Seniormost handwriting expert and to give evidence in that behalf in the interest of justice.'

Impugned order :

'Objection to I. A. III not filed. I. A. III allowed. Superintendent of Forensic Laboratories is appointed as Commissioner as prayed.'

2. The facts relevant for the disposal of this revision petition may briefly be stated : The petitioner is the plaintiff in that suit and the respondent is the defendant. The suit is for recovery of certain amounts said to be due from the respondent under two promissory-notes. The respondent is resisting the suit on more than one ground, and paras 2 and 3 of his written statement read thus:--

'2. The allegation made in para 2 that the defendant executed pronotes for valuable consideration he had from the plaintiff on 12-2-1964 and on 15-2-1964 for a sum of Rs. 2,000/- each agreeing to pay interest at the rate of 12% per annum is hereby denied and the plaintiff is put to strict proof of the same,

3. The defendant submits that there was no payment whatsoever and the so-called payments made under the so-called signatures of the defendant is equally incorrect and false. Without prejudice to the above contention the defendant submits further that the pro-note is void inasmuch as there is a material alteration made by the plaintiff and it is hit by Section 87 of the Negotiable Instruments Act. It is submitted that the 10 paise stamps which are put on the two pronotes were not there when the documents came into being. The plaintiff has deliberately affixed the two 10 paise stamps on each of the pronotes and has forged the signature of the defendant. In this view of the matter also the documents are void and the suit is consequently liable to be dismissed.'

On an application filed by the petitioner under Order 26, Rule 9, C. P. C. requesting to send the disputed and admitted signatures in the promissory notes to the Director, Forensic Science Institute, Bangalore, for comparison, the learned Munsiff made an order accordingly, and on comparison of those signatures a report was submitted and the person who compared those signatures and submitted the report was also examined in Court. It was at that stage the respondent filed I. A. III and the impugned order was passed.

3. It was contended by Sri N. S. Sathyanarayana Gupta, learned counsel for the petitioner that no opportunity was given to the petitioner to oppose I. A. III and he was not heard before passing the impugned order, and besides it is not a speaking order, and in view of the report already submitted on comparison of the admitted and disputed signatures it was not proper to make the impugned order.

4. Now the principle is that where a particular matter has already been the subject of investigation and a report has been submitted by a Commissioner in that behalf, another commission for the same purpose should not ordinarily be issued unless upon valid grounds made out by the parties concerned and the previous report is unreliable and unhelpful and therefore should be set aside. In the present case, the learned Munsiff has completely overlooked this principle and has acted in a casual manner. He has not given any reason as to what propelled him to make the impugned order. When there is already a report submitted in respect of the same matter, he should have considered whether or not there were valid grounds to act in the manner he did. But it is obvious he has not addressed himself to this aspect of the matter before passing the impugned order. In the view I take, the impugned order must be and is accordingly set aside and the matter is remitted to the learned Munsiff to dispose of I. A. III afresh after allowing the petitioner to file his objections to it and after hearing him and in the light of the observations made above. In this petition, parties tobear their own costs.

5. Petition allowed.


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