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2007 DIGILAW 1314 (MAD)

A. Pachiappan v. R. Chinaian

2007-04-13

S.ASHOK KUMAR

body2007
Judgment :- The revision petitioner is the defendant in the suit O.S.No.206 of 2004 on the file of the District Munsif, Palladam filed by the respondent/plaintiff for the recovery of a sum of Rs.75,545/- based on the suit promissory note dated 10.06.1998 executed by the defendant in favour of the plaintiff for a sum of Rs.50,000/-. The defendant filed his written statement denying the very execution of the suit promissory note. The suit was ripe for trial and P.Ws.1 and 2 were examined and Ex.A1 was marked on the side of the plaintiff. At this stage, the petitioner/defendant filed the application in I.A.No.1230 of 2006 praying to send the document Ex.P.1 the suit promissory note dated 10.06.1999 for the expert opinion for the reason that the said promissory note was written with three different inks, in different hand writing. The Court below after hearing both sides dismissed the said application. Aggrieved over the said order, the petitioner/defendant has filed the above civil revision petition. 2. Heard learned counsel for the petitioner and perused the materials available on record. 3. Considering the facts and circumstances of the case, upon hearing the learned counsel for the petitioner and upon perusing the materials available on record, it could be seen that the defendant denying the execution of the suit promissory note filed the interlocutory application for comparison of the suit promissory note under Order XXVI Rule 10 of Code of Civil Procedure. Order XXVI Rule 10 CPC reads as follows: "10.Procedure of Commissioner-- .(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court. .(2) Report and depositions to be evidence in suit-- The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matter referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Commissioner may be examined in person---- Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as i shall think fit. 10A. Commission for scientific investigation--- (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court". A perusal of the above rulings would show that the petitioner is not entitled to the relief prayed for by him. But the Court is entitled to examine the disputed documents under Section 73 of the Indian Evidence Act which reads as follows: "In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person." 4. The petitioner has filed the present application after a period of six years, that too, when the suit was taken up for trial and the witness was in the box. Further more, the petitioner has filed the application without following the rules. The Court below has analysed the matter in a proper perspective manner and came to the correct conclusion that the petitioner is entitled to the prayer asked for and dismissed the application. In the said circumstances, I have no hesitation to interfere with the order of the Court below. I concur with the findings of the Court below. 5. In the result, the civil revision petition is dismissed as devoid of merits. Consequently, connected M.P. is also dismissed. No costs.