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1998 DIGILAW 1660 (MAD)

S. Rajarathinam v. Seeni Ammal

1998-12-02

S.M.SIDICKK

body1998
Judgment 1. The revision petitioner is the plaintiff and the respondents are the defendants. 2. This revision petition is directed as against the order of the learned Principal District Munsif at Trichy dated 9.10.1998 and made in I.A.No.558 of 1997 in O.S.No.382 of 1997 on the file of the Principal District Munsifs Court at Trichirapalli. 3. The revision petitioner/plaintiff filed an application in I.A.No.558 of 1997 under O.26, Rule 10(a) and Sec.151 of C.P.C. to pass an order of sending the original sale agreement dated 15.3.1974 to the Tamil Nadu Forensic Science Laboratory at Madras to verify the genuineness of the same comparing with the admitted thumb impression of the first defendant in the suit summons, vakalath, affidavit and written statement available in the suit. The said application in I.A.No.855 of 1995 was resisted by the respondents/defendants by filing a counter statement. After considering the rival contentions of both the parties the learned Principal District Munsif at Trichirapalli passed an order on 9.10.1998 dismissing the said application in I.A.No.558 of 1997, against which the present revision is filed. 4. When the revision came up for admission, the learned counsel for the revision petitioner/plaintiff argued that where the genuineness of the signatures is disputed, the court may rightly issue a commission for investigation by the expert, and the trial court failed to note that the sale agreement contains the disputed signature, and the lower court committed an error by stating that in the first instance it must be proved by the plaintiff that the signature found in the document dated 15.3.1974 is that of the signature of the first defendant, and in those circumstances this Revision petition must be admitted. The above contentions are untenable for the following reasons. 5. It is not correct to state that before even an expert opinion is sought for the disputed signature must be proved. The opinion of the expert is obtained normally to assist the court to appreciate the facts in a case and to arrive at a decision on the basis of the substantive evidence to be adduced by both parties after the opinion of the expert was obtained and after the expert was examined as a witness on the side of the party, who sought for the opinion of the expert. However the prayer in the application in I.A.No.558 of 1997 filed before the lower court is significant, and it reads that the original documents like the sale agreement dated 15.3.1974, the vakalath, the affidavit and the written statement should be sent to the expert for his opinion to verify the genuineness of the thumb impression in the disputed sale deed. Such a procedure has been condemned and deprecated in several judgments of our High Court time and again. 6. In the decision reported in (1968)2 MLJ. 48 ,it was observed that the practice of allowing the original documents to go out of the custody of the court is attendant with various risks and it should be stopped. 7. In one another decision of our High Court court reported in Doraiswami Gounder v. Padayammal Doraiswami Gounder v. Padayammal Doraiswami Gounder v. Padayammal (1976)1 MLJ. 11 it washeld as follows: “Unless it is not possible for the Government expert to examine the genuineness or otherwise of the endorsement on an original document without taking it from the custody of the court, it would not be desirable to allow the document to be handled by him outside the court. It is desirable to have the endorsement examined by the Government expert, but he will do it in the presence of the court official. If he feels it necessary, he may be permitted to take photographic copies of the document.” 8. In yet another Judgment of a Division Bench of our Madras High Court consisting of His Lordships Justice M.Srinivasan (as he was then) and Justice Thangamani reported in Balarama Reddy v. Sarathy Enterprises (1994)2 L.W. 287 it was laid down as follows: 9. So time and again our High Court has deprecated the practice of sending the original documents “No document can be sent out of court to be examined by any expert.” to an expert for his opinion for the simple reason that when the original documents are sent out of the court, then there is every likelihood of the original documents being lost during transit from the court to the expert or from the commission to the expert. In those circumstances, the prayer asked for in the application in I.A.No.558 of 1997 by the revision petitioner/plaintiff cannot be granted. In those circumstances, the prayer asked for in the application in I.A.No.558 of 1997 by the revision petitioner/plaintiff cannot be granted. There is no illegality or irregularity committed by the trial court in dismissing the application in I.A.No.558 of 1997, and therefore the revision petition must fail. 10. However, the learned counsel for the revision petitioner/plaintiff made a submission that the plaintiff must be permitted to file another application for an expert opinion by asking the expert to come to the court and permit him to take photographic copies of the thumb impression in the disputed document as well as the thumb impression in the admitted documents and compare the same by the expert and file his report with regard to his opinion. If the revision petitioner is so advised, he can file such a fresh application, and the lower court can consider the same in accordance with law. However, I find from the type set of papers revision petition that the suit is of the year 1988, and already 10 years have lapsed, and so a direction must be given to the lower court to dispose of the suit within a period of three months. Hence, I hold that the Revision petition is devoid of merits, and the same has to be dismissed without costs, and the fair and final order of the learned Principal District Munsif at Trichirapalli, dated 9.10.1998 in I.A.No.558 of 1997 in O.S.No.382 of 1997 have to be confirmed, and the Revision petitioner/plaintiff is at liberty to file a fresh application, if he is so advised, to permit the Government expert to come to the court to take photographic copies of the disputed documents in the presence of the court official and to compare the photographic copies by the expert and to give his opinion about the genuineness of the thumb impression found in the disputed document, and the lower court is directed to dispose the suit within a period of three months from the date of receipt of this order, and I answer this point accordingly. 11. In the result, the revision petition is dismissed without costs. The fair and decretal order dated 9.10.1998 passed by the learned Principal District Munsif at Trichirapalli in I.A.No.558 of 1997 in O.S.No.382 of 1997 are confirmed. 11. In the result, the revision petition is dismissed without costs. The fair and decretal order dated 9.10.1998 passed by the learned Principal District Munsif at Trichirapalli in I.A.No.558 of 1997 in O.S.No.382 of 1997 are confirmed. The revision petitioner/plaintiff is at liberty to file a fresh application, if he is so advised, to permit the Government expert to take photographic copies of the disputed document as well as the admitted documents in the presence of the court official and to compare the thumb impression in the disputed document with the thumb impression in the admitted documents and to file his report giving his opinion. The learned Principal District Munsifs at Trichirapalli is directed to dispose the suit within three months from the date of receipt of this order and to send a Report of the High Court of Madras about the disposal of the suit. Consequently the stay petition in C.M.P.No.17693 of 1998 is also dismissed as unnecessary.