Madras High Court
Sundaramoorthy vs R.Palanisamy on 24 November, 2008
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.11.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD) No.1982 of 2008
and
M.P.No.1 of 2008
Sundaramoorthy ... Petitioner
Vs.
R.Palanisamy ... Respondent
This Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the order dated 11.03.2008 passed in I.A.No.79 of 2008 in O.S.No.81 of 2007 on the file of Additional District Court, (F.T.C.), Erode.
For Petitioner : Mr.A.K.Kumaraswamy
For Respondent : Mr.P.Valliappan
O R D E R
This Civil Revision Petition has been filed by the petitioner/plaintiff to set aside the order dated 11.03.2008 passed in I.A.No.79 of 2008 in O.S.No.81 of 2007 on the file of Additional District Court, (F.T.C.), Erode.
2. The plaintiff in O.S.No.81 of 2007 is the revision petitioner before this Court. The suit in O.S.No.81 of 2007 was filed by the petitioner/plaintiff for recovery of money for a sum of Rs.6,46,000/- with interest. Written statement has been filed by the respondent/defendant and the suit is being contested. Pending suit an application in I.A.No.656 of 2007 was filed by the respondent/defendant to send the disputed documents to Forensic Science Department at Chennai to ascertain the age of the ink found in the disputed promissory note. However, the said application was withdrawn as not pressed by the respondent/defendant on 11.01.2008. Thereafter, an application in I.A.No.79 of 2008 was filed by the very same respondent/defendant under Section 45 of the Indian Evidence Act to send the suit promissory note to find out the age of the ink, through a Commissioner to be appointed in the above matter to hand over the original suit promissory note to the Director of Forensic Science, Government of India, attached to the office of the Government Examiner of questioned Documents, CFI Complex, Ramanathpur, Hyderabad-13 and get back the said original suit promissory note after getting the Expert's opinion. The said application was resisted by the petitioner/plaintiff by filing a counter. The trial Court by order dated 11.03.2008 allowed the application and appointed an Advocate Commissioner. Aggrieved by the same, the above civil revision petitioner has been filed by the plaintiff.
3. This Court on 01.07.2008 ordered notice and granted interim stay. The respondent/defendant has entered appearance through counsel.
4. I have heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent and I have also gone through the documents filed in support of their submissions.
5. The learned counsel for the petitioner/plaintiff would submit that the trial Court has mis-directed itself in allowing the application for sending the original promissory note to find out the age of the ink of the writings and the signature found in the promissory note. According to him, a similar application filed by the respondent/defendant earlier was withdrawn as not pressed by the respondent/defendant during January,2008 without obtaining liberty to file another petition and thereafter for the very same purpose, the present application in I.A.No.79 of 2008 was filed by the respondent/defendant, and the same has been allowed. Therefore, he adds that the failure on part of the trial Court to take note of this fact, which was withdrawn as not pressed by the respondent/defendant vitiates the order and the order is hence bad. The learned counsel for the petitioner would further submit on merits that this Court in earlier judgment in S.Gopal Vs. D.Balachandran reported in 2009(1) CTC 491, has been observed that "the age of the ink cannot be determined, on the basis of the writing the ink in dispute was manufactured five years prior to the date of execution of the document and used effectively on a particular dated for the first time and an experts opinion as age of ink will not resolve any controversy, but it will help to create only confusion." Therefore, according to the learned counsel for the petitioner that no useful purpose would be served by sending the promissory note to ascertain the age of the ink.
6. Per contra, the learned counsel appearing for the respondent would submit that the earlier application was withdrawn only on the ground that there was no facility available with the Forensic Department at that point of time. But, thereafter, on coming to know of the availability of the facility to ascertain the age of the ink, in the Office of the Forensic Department at Hyderabad, the present application in I.A.No.79 of 2008 was filed. Therefore, withdrawal of a similar application filed earlier, cannot be put against the respondent/defendant. The learned counsel for the petitioner further submits that though such opinion from an expert is a weak piece of evidence, still, it will have some benefit to the defendant in establishing the case of the defendant. Therefore, according to him, the trial Court, in due consideration of the facts and law has allowed the application and the same does not require any interference by this Court. Hence, he prays for dismissal of the civil revision petition.
7. I have heard the rival submissions carefully.
8. I am unable to accept the submissions made by the learned counsel for the respondent/defendant. In a case of this nature, where the suit has been filed by the petitioner/plaintiff for recovery of money on the basis of promissory note, it is for the plaintiff to establish his case that the promissory note, out of which the amount is due, is executed by the respondent/defendant. The defendant need not take any steps to disprove the case of the plaintiff. In my view, no useful purpose would be served by sending the pronote to ascertain the age of the ink. As rightly held by this Court earlier, in the judgment cited supra, sending a document to an expert to ascertain the age of the ink would only create more confusion. Further, as rightly contended by the learned counsel for the petitioner, no liberty was obtained when the earlier application filed for the very same relief was withdrawn by the defendant.
S.RAJESWARAN,J.
rrg
9. Therefore, the order of the trial Court is liable to be set aside. Accordingly, the civil revision petition is allowed and the order passed by the trial Court is set aside.
10. In the result, the civil revision petition is allowed. No costs. Consequently, connected M.P.No.1 of 2008 is closed.
24.11.2008 rrg Index : Yes/No Internet: Yes/No To The Additional District Court, Fast Track Court, Erode.
CRP(PD)No.1982 of 2008