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2009 DIGILAW 386 (MAD)

Rayappan v. Arokia Doss & Another

2009-01-29

G.RAJASURIA

body2009
Judgment : This civil revision petition is preferred against the fair and decretal orders dated 18.09.2007 made in I.A.No.2405 of 2007 in O.S.No.767 of 2004 on the file of the Court of Principal District Munsiff (Full Incharge)/IInd Additional District Munsif, Kallakurichi. Animadverting upon the order dated 18.09.2007, passed by the learned Principal District Munsiff (Full Incharge)/IInd Additional District Munsif, Kallakurichi, in I.A.No.2405 of 2007 in O.S.No.767 of 2004, this civil revision petition is focussed. 2. Heard. 3. A summation and summarisation of facts which are absolutely necessary and germane for the disposal of this revision would run thus: The respondents/plaintiffs filed O.S.No.767 of 2004 seeking the following reliefs: Tamil 4. It so happened that during the pendency of the O.S., the plaintiff himself filed earlier the I.A.No.1161 of 2005 seeking direction from the Court to send the impugned Left Thumb Impression (LTI) found in the first page of the alleged Will relied on by the defendants. Whereupon, the Court sent only the purported LTI of the deceased testator found in the first page of the said Will to the expert for being compared with the admitted LTI. However, the expert gave opinion to the effect that the impugned LTI sent to him for opinion was not decipherable because it got smudged. Whereupon the defendant filed I.A.No.2045 of 2000 praying the Court to send the other LTIs of the testator in the said Will so that the expert would be able to compare it with the admitted LTI and furnish his report. However the Court simply rejected the prayer and dismissed the I.A. Being aggrieved by and dissatisfied with the order of the lower Court, this revision is focussed on various grounds. 5. The learned counsel for the revision petitioner placing reliance on the grounds of revision would develop his argument to the effect that in the said Will relied on by the defendants, the LTIs of the testator are found in all the pages; knowingly or unknowingly, earlier while sending the photocopy of the LTI to the expert, the LTI found in the first page alone was taken and sent, which resulted in the expert giving such a opinion as set out supra; now when the defendant sought the help of the Court to send the other decipherable LTIs of the testator found in the other pages of the Will, the lower Court unjustifiably dismissed such prayer. Hence, he prays for allowing this revision and consequently for allowing the I.A. after setting aside the impugned order of the lower. 6. I could find considerable force in the submission made by the learned counsel for the revision petitioner. In view of the fact that earlier the expert had not given any opinion on merits, but expressed his view that the impugned LTI was not decipherable fully and that it was not sufficient for giving his opinion, the lower Court should have sent suo moto the other decipherable LTIs. But in this case, the defendant came forward with a prayer to send those other LTIs to expert for opinion, but curiously the lower Court dismissed it for no good reason. Hence the impugned order of the lower Court is set aside and the I.A. is allowed as under: "An Advocate Commissioner shall be appointed by the lower Court : .(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." Accordingly, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.