1. Heard. The order passed by the First Additional Civil Judge, Bangalore Rural District, Bangalore in I.A No. 52 in O.S No. 45/88 has been challenged by the first defendant-petitioner in this petition.

2. The facts very briefly are:—

The plaintiff filed an application under O. 26, R. 10A, C.P.C for appointment of an Handwriting Expert as a Commissioner to give opinion on the thumb impression and the signatures to be found in Ex. D-82(a)(3) and (4) and also Ex. D-82(b) and further to compare the same with the signature found in Ex. D-53.

3. The trial Court after elaborately setting out the reasons has allowed I.A No. 52, application made by the plaintiffs for appointment of an Handwriting Expert to compare the signatures.

It is averred that plaintiffs' father established a family temple and the defendants have no right whatsoever over the temple. The contention of the defendants was that it is not disputed that the temple was established by the father of plaintiffs 2 and 3. However, it was stated that the temple had been endowed for the public purpose by way of a gift deed. While giving evidence the first defendant produced a certified copy of the alleged gift deed purported to have been executed by the father of plaintiffs 2 and 3. It was produced as secondary evidence. To prove the execution, the signature and L.T mark of the executant the defendant summoned the documents from the Sub-Registrar's office and the extract has been marked by the Sub-Registrar DW-2 as Ex. D-82. In his evidence the Sub-Registrar identified the signatures and L.T Mark found in Ex. D-82 as the gift deed executed by the father of plaintiffs. This was marked as Ex. D-82(a). DW-1 in his evidence has also marked Exs. D-53 and 57 and has pointed out that they are signatures of the father of plaintiffs.

4. The question that arose for consideration in L.A No. 52 was whether in fact the father of plaintiffs viz., Gangahanumaiah did in fact execute the gift deed. In order to and the Court whether in fact the gift deed was executed by Gangahanumaiah the first defendant took the course of action to summon the Sub-Registrar and to mark Ex. D-82. While perusing the Register there were two signatures of Gangahanumaiah one at Ex. D-82(a) and one at Ex. D-82(b).

5. Ex. D-82(a) relates to the alleged gift deed by Gangahanumaiah, which is the disputed handwriting. Ex. D-82(b) is the admitted handwriting of Gangahanumaiah. It has been admitted by the defendant-petitioner. In these circumstances, it was submitted on behalf of the plaintiffs-respondents that no prejudice could be caused to the defendants if the signature of the alleged gift deed found in Ex. D-82 is compared with the admitted signature with respect to other signature found in Ex. D-82. In other words, there can be absolutely no prejudice to the defendants if disputed signature at Ex. D-82(a) is compared with the admitted signature of Ex. D-82(b). It is common ground that the defendants admitted the signature of Ex. D-82(b) as that of Gangahanumaiah. They also admitted that signature Ex. D-82(a) in the alleged gift deed is also the signature of Gangahanumaiah. However, the plaintiffs strongly deny that Ex. D-82(a) is the signature of plaintiffs' father Gangahanumaiah. It is not the plaintiffs who sought for records from the Sub-Registrar's office. It is the defendant No. 1 who wanted to prove the signature at Ex. D-82(a) as that of Gangahanumaiah. It is also the defendant No. 1 who has admitted Ex. D-82(b) as the signature of Gangahanumaiah. Plaintiffs on the contrary strongly dispute the signature of Gangahanumaiah at Ex. D-82(a).

6. In these circumstances, it is the defendants who would stand or fall on those pieces of evidence which they seek to rely on to prove that Ex. D-82(a) is the signature of Gangahanumaiah. If the defendants had chosen to mark other admitted signatures of Gangahanumaiah such as D-53 it would not be unreasonable for the plaintiffs to seek truth of the averments made in the evidence with respect to the admitted handwriting of Gangahanumaiah and the disputed handwriting of Gangahanumaiah. So, no prejudice would be caused to the petitioner-defendant if the admitted signatures of Gangahanumaiah are compared with the disputed signatures of Gangahanumaiah.

7. Before adverting to the contentions of the learned senior counsel for the respondents the Court will have to examine its powers while exercising its jurisdiction under S. 115, C.P.C In the case of Hindustan Aeronautics v. Ajit Prasad, reported in AIR 1973 SC 76, the Supreme Court has cautioned the Courts in interfering with the orders passed by the trial Courts while exercising powers under S. 115, C.P.C At paragraph-5 of the decision the Supreme Court has held as follows:

“In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under S. 115 of the Civil Procedure Code.”

In another decision in the case of D.L.F Housing Co. v. Sarup Singh (AIR 1971 SC 2324) : 1970 (2) SCR 368, the Supreme Court has held as follows:

“While exercising the jurisdiction under S. 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The words “illegally” and “with material irregularity” as used in Cl. (c) do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with.”

In my view the broad principles laid down by the Supreme Court in the above decisions still apply notwithstanding the amendment by S. 43 of Act 104 of 1976 to S. 115, C.P.C

8. In this background of the powers under S. 115, C.P.C one has to consider the contentions of Mr. Visveswaraiah, learned counsel for the petitioner. He has strenuously contended that a signature can be compared by an handwriting expert only when admitted signature is available and in this particular case there is no admitted signature. He also further strenuously contended that when oral evidence clearly establishes that Gangahanumaiah had executed the gift deed it is not necessary for the Court to embark upon any investigation regarding the comparison of signatures by an handwriting expert. He drew my attention to various portions of the plaint and the evidence wherein the 2nd plaintiff has admitted the execution of the gift deed by Gangahanumaiah. He also relied upon the decisions reported in AIR 1960 AP 359, AIR 1976 Mad 66 and AIR 1976 Cal 224. The learned counsel for the respondents on the other hand has submitted that the plaintiffs have by no means admitted the execution of the gift deed by Gangahanumaiah and if such a gift deed did exist he would be entitled to take an alternative plea. The reason for this, according to the learned counsel for the plaintiffs, is that the 2nd plaintiff was never aware of a gift deed and it was only when the defendants brought such an alleged gift deed to the notice of the plaintiffs he had to take the defence assuming that there was a gift deed. The learned counsel's submission is that the 2nd plaintiff who is the son of late Gangahanumaiah was a small child when the alleged gift deed, if any, was executed by Gangahanumaiah. The contention of the learned counsel for the plaintiffs is that throughout his case has been that if a gift deed exists as claimed by the defendants then the plaintiffs would be entitled to prove that the gift deed did not confer any right on the 1st defendant. He further contended that it was the 1st defendant who summoned the Sub-Registrar and it was by the Sub-Registrar that Ex. D-82 was marked to prove the execution of the gift deed. The learned Counsel also took me through the evidence of DW-1. In the cross-examination DW-1 states as follows:

“The signature now shown to me as Gangahanumaiah is the signature of the 2nd plaintiff's father Gangahanumaiah. It is marked as Ex. D-82(b).”

The defendant having identified the signature in Ex. D-82 as the gift deed executed by Gangahanumaiah at Ex. D-82(a) and further in the cross-examination stating that the signature found at Ex. D-82(b) is that of Gangahanumaiah, the learned trial Court was justified in allowing I.A-52. A question will arise whether, in view of the decisions of the Supreme Court, any interference is called for while exercising jurisdiction under Section 115, C.P.C Even if the order of the lower Court may be right or wrong; may be in accordance with law or may not be in accordance with law, unless it had exercised its jurisdiction illegally or with material irregularity the High Court will be slow to interfere. In this view of the matter, I do not find any ground to interfere with the order of the learned 1st Additional Civil Judge in I.A-52. The civil revision petition is accordingly dismissed. No order as to costs. It is, however, made clear that any opinion given by the hand-writing expert with respect to Exs. D-82(a) and D-82(b) is only to and the Court. It will not be the end of the case. If the defendants are able to establish on the basis of the materials before the trial Court that notwithstanding the opinion of the handwriting expert and the alleged admission of DW-1 there are materials on record to prove the existence of the gift deed, then the Court will consider the materials on record and dispose of the case in accordance with law. It is also brought to my notice that there is an earlier order by this Court that the trial Court will dispose of the suit on day-to-day basis. The trial Court is directed to dispose of the suit as per the earlier directions of this Court.

The learned trial judge is directed to appoint a hand-writting expert who is in the services of either the State Government or the Central Government for the purpose of any order that may be passed in I.A-52 as requested by the Counsel for the petitioner and the respondents.

Revision dismissed.