IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:05.03.2009
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
C.R.P.(PD)No.4 of 2009 and
M.P.No.1 of 2009
V.Balasubramaniam ... Petitioner
vs.
K.Shyamaladevi ... Respondent
Civil revision petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 11.11.2008 made in I.A.No.403 of 2008 in O.S.No.91 of 2001 on the file of the Additional District Judge and Fast Track Court No.1, Erode.
For Petitioner : No appearance
For Respondent : No appearance
O R D E R
Inveighing the order dated 11.11.2008, passed by the Additional District Judge and Fast Track Court No.1, Erode in I.A.No.403 of 2008 in O.S.No.91 of 2001, this civil revision petition is focussed by the defendant in the suit.
2. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The respondent/plaintiff filed the suit O.S.No.91 of 2001 seeking the following reliefs:
"a) directing division of the suit properties into two equal shares by metes and bounds and with reference to good and bad soil and allot one such share to the plaintiff and put her in separate possession;
b) appointing a commissioner to divide the suit properties as claimed in column (a);
c) restraining the 1st defendant and his assignees etc., from in any way and in any manner either alienating or encumbering the suit properties with specific boundaries till final decree is passed by means of permanent injunction;
d) directing the 1st defendant to pay the costs of the suit to the plaintiff; and
e) granting such other and further reliefs that are fit and proper in the circumstances of the case and render justice."
The defendant entered appearance and filed the written statement. While so, I.A.No.403 of 2008 was filed seeking the following prayer:
"To permit any one of the expert mentioned hereunder with a direction to inspect the suit documents i.e. Ex.B23 and other admitted documents mentioned hereunder in the court premises in the presence of the same officer of this Honourable Court and to take photo copies of the thumb impressions found in the admitted documents and the thumb impressions found in Ex.B.23 for comparison and to give his opinion about the thumb impression found in those documents and pass other suitable orders...."
After hearing both sides, the lower Court dismissed the I.A. Being disconcerted and aggrieved by the order of the lower Court, this revision has been filed on various grounds.
3. Despite printing the names concerned, none appeared.
4. A bare poring over and perusal of the typed set of papers including the copy of the order of the lower Court would reveal that the contention of the first defendant is that the first defendant's mother Arukkaniammal executed a registered Will dated 10.04.1951 bequeathing the suit properties in his favour and she died on 07.05.1996. However, the plaintiff would contend that the said Will is not genuine but a forged one. Hence the defendant who very much relies upon the Will, wanted to take assistance of the handwriting expert, but the lower Court misunderstanding the decisions of this Court referred to in its order simply jumped to the conclusion that the Court itself could compare the disputed signature of Arukkaniammal with her admitted signatures and accordingly dismissed the application.
5 At this juncture, I would like to refer to the decision of the Hon'ble Supreme Court reported in 1992 (3) SCC 701 (State of Maharashtra thro CBI Vs. Sukhdev Singh @ Sukha and Others).
6. A plain perusal of it would unambiguously and unequivocally, indubitably and undisputedly highlight the point that the Court should be slow in using its power under Section 73 of the Indian Evidence Act. Here the thumb impression also is available in the said Will and an expert could very well compare the thumb impression of Arukkaniammal in the Will with that of her admitted thumb impression in other documents. Hence, the lower Court without au fait with law and au courant with facts, simply dismissed the I.A. The lower Court was labouring under the idea that trying to get the expert opinion is a tough row to hoe. The Court could prescribe time limit for the expert to complete the analysis and comparison and give its opinion accordingly. In view of the same, the impugned order dated 11.11.2008 is set aside by allowing this civil revision petition. Consequently, I.A.No.403 of 2008 shall stand allowed as under:
"An Advocate Commissioner shall be appointed :
(a) To carry the relevant documents in connection with this case personally in a sealed cover;
(b) and produce the same before the Forensic Expert;
(c) leave it in his custody under his acknowledgment for as many days as the Forensic Expert may require;
(d) collect the record from the Forensic Expert on the day as may be fixed by him;
(e) bring it back and lodge it with the Court.
The Forensic Expert is directed to complete the examination of the records in any event, within 48 hours after the depositing of the same by the Advocate Commissioner with him."
No costs. Consequently, connected miscellaneous petition is closed.
To
Additional District Judge and Fast Track Court No.1,
Erode
