Madras High Court
Subramanian vs Palani @ Palniappan on 24 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).No.2273 of 2012 and M.P.No.1 of 2012 Subramanian .. Petitioner vs. Palani @ Palniappan .. Respondent Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order of the Subordinate Judge's Court at Kallakurichi, dated 22.11.2011 in I.A.No.118 of 2009 in A.S.No.160 of 2005. For Petitioner : Mr.P.Valliappan ORDER
Animadverting upon the order dated 22.11.2011 passed in I.A.No.118 of 2009 in A.S.No.160 of 2005, by the learned Subordinate Judge, Kallakurichi, this civil revision petition is focussed.
2. The epitome and the long and short of the germane facts, in a few broad strokes could be encapsulated thus:
(i) The unsuccessful plaintiff in the suit preferred appeal and along with that he filed I.A.No.118 of 2009 with the following prayer:
VERNACULAR (TAMIL) PORTION DELETED
(ii) However, after hearing both sides, the petition was dismissed.
3. Being aggrieved by and dissatisfied with the said order of dismissal in I.A.No.118 of 2009, this revision has been focussed on various grounds.
4. The learned counsel for the petitioner would put forth and set forth his arguments based on the grounds of appeal, which could tersely and briefly be set out thus:
(a) The lower appellate Court would have very well allowed the application, so that the plaintiff might have been in a stronger position to establish the genuineness of his case that the suit pro note was executed by the defendant.
(b) It is not a case as though belatedly the petitioner is trying to put forth any vague averment.
(c) In fact, in the suit pro note itself, the left thumb impression of the defendant is found and if the appellate Court summons the defendant and obtains his left thumb impression and sends it to the Forensic expert for making comparison with the disputed left thumb impression in the pro note, then the truth will come out. When such a possibility and probability is readily available, without any rhyme or reason, the appellate Court simply dismissed the application, warranting interference.
5. Despite printing the name of the respondent, there is no representation on his behalf.
6. The point for consideration is as to whether the first appellate Court was justified in simply dismissing the I.A. without giving opportunity to the petitioner/appellant to take the assistance of an expert for comparing the admitted left thumb impression of the respondent with his disputed thumb impression in the suit promissory note?
7. The leaned counsel for the petitioner cited the following three judgments of this Court.
(i) 2011(1) MWN (Civil) 843 [M.A.Velappan v. 1. Karthic Worms, A Partnership Firm, rep. By its Partner, A.Rathinagiri and others]
(ii) 2011 (2) MWN (Civil) 637 [K.R.Chinnasamy v. K.R.Chinnasamy]
(iii) 2012 (2) CTC 410 [D.Janaki v. S.Jayalakshmi] A mere poring over and perusal of those judgments, would amply make the point clear that due opportunity has to be given to the petitioner to prove his case.
8. I recollect the popular adage:
Every trial is a voyage, in which the quest for truth is the goal.
Accordingly, if viewed, the Court should render its assistance so as to enable the plaintiff to prove his case. No doubt at the trial stage itself, the plaintiff could have taken such steps; however, hoping and believing that based on oral evidence he would be able to prove his case, he kept quiet. Having met with his waterloo in the litigative battle before the lower Court, he wanted to be more cautious and invoke Section 73 of the Indian Evidence Act and get better evidence.
Hence I am of the considered view that the appellate Court without any justifiable reason simply dismissed the application warranting interference. Accordingly, the order of the lower Court is set aside and the following direction is passed:
The appellate Court shall issue summons to the respondent/defendant to appear before the Court to give his left thumb impression, which shall be taken in the presence of the Judge in the open Court and that too in the presence of both sides. After taking such left thumb impression, an Advocate Commissioner shall be appointed:
(a) To carry such sample left thumb impression and 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 a week after the depositing of the same by the Advocate Commissioner with him and furnish his opinion. If the defendant fails to co-operate with the Court and furnish his thumb impression, adverse inference could rightly be taken.
Accordingly, this civil revision petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
To The Subordinate Judge Kallakurichi