Case Note & Summary
The petitioner, who is defendant No.1 in O.S. No.10/2009 pending before the Court of Civil Judge (Sr.Dn.) Gangavati, filed two writ petitions under Articles 226 and 227 of the Constitution of India. The suit was filed by the respondents (plaintiffs) for specific performance of an agreement of sale. During the trial, the defendant filed an application under Section 45 of the Indian Evidence Act, 1872 seeking to send the suit agreement to a handwriting expert for comparison of signatures, alleging that the document was forged. The trial court rejected the application vide order dated 13.06.2011 (Annexure-G) on the ground that the agreement was insufficiently stamped and therefore could not be looked into for any purpose. The defendant also challenged an earlier order dated 05.07.2010 (Annexure-D) directing the plaintiffs to pay deficit stamp duty and penalty under Sections 34 and 35 of the Karnataka Stamp Act, 1957. The High Court considered the legality of both orders. The court observed that the question of admissibility of the document due to insufficient stamp duty is a separate issue from the necessity of obtaining expert opinion to determine the genuineness of the document. The court held that the trial court erred in rejecting the application under Section 45 of the Evidence Act solely on the ground of insufficient stamp duty. The court directed that the plaintiffs shall pay the deficit stamp duty and penalty as ordered earlier, and thereafter the defendant shall be permitted to send the document for expert opinion. The writ petitions were allowed in part, quashing the order rejecting the application under Section 45 and directing the trial court to reconsider the application after compliance with the stamp duty order.
Headnote
A) Civil Procedure - Expert Opinion - Section 45 of the Indian Evidence Act, 1872 - Application for sending document to handwriting expert - The defendant sought to send the suit agreement for expert opinion to compare signatures. The trial court rejected the application on the ground that the document was insufficiently stamped and could not be looked into. The High Court held that the question of admissibility of the document due to insufficient stamp duty is distinct from the necessity of expert opinion to determine its genuineness. The court directed the trial court to permit the defendant to send the document for expert opinion, subject to the plaintiffs paying deficit stamp duty and penalty under Sections 34 and 35 of the Stamp Act, 1957. (Paras 1-10) B) Stamp Act - Deficit Stamp Duty - Sections 34 and 35 of the Karnataka Stamp Act, 1957 - The trial court had earlier directed the plaintiffs to pay deficit stamp duty and penalty. The High Court upheld that order and directed compliance before the document is sent for expert opinion. (Paras 5-10)
Issue of Consideration
Whether the trial court was justified in rejecting the application filed by the defendant under Section 45 of the Indian Evidence Act, 1872 seeking to send the suit agreement for expert opinion to determine its genuineness.
Final Decision
The High Court allowed the writ petitions in part. The order dated 13.06.2011 rejecting the application under Section 45 of the Evidence Act was quashed. The trial court was directed to permit the defendant to send the suit agreement for expert opinion, subject to the plaintiffs paying the deficit stamp duty and penalty as ordered on 05.07.2010. The order dated 05.07.2010 regarding payment of deficit stamp duty and penalty was upheld.
Law Points
- Section 45 of the Indian Evidence Act
- 1872
- expert opinion
- handwriting expert
- genuineness of document
- specific performance
- Order 26 Rule 10A CPC
- Section 73 of the Evidence Act
- Stamp Act
- 1957 Sections 34 and 35
