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2012 DIGILAW 3483 (MAD)

K. Sarangan v. M. Govindaraj

2012-08-06

M.VENUGOPAL

body2012
Judgment :- 1. The Petitioner/Defendant has filed the present Civil Revision Petition as against the docket order dated 10.12.2009 in I.A.No.2888 of 2009 in I.A.No.7228 of 2007 in O.S.No.3717 of 2006 passed by the Learned III Assistant Judge, City Civil Court, Chennai. 2. The Learned Senior Counsel for the Petitioner/Defendant submits that the learned III Assistant Judge, City Civil Court, Chennai should have seen that the Court is already seized of the matter and that the importance of an expert opinion is essential for disposal of the main suit itself. Moreover, I.A.No.7228 of 2007 has been taken on file before the enquiry in an application seeking leave to defend the suit. 3. The Learned Senior Counsel for the Petitioner/Defendant further contends that I.A.No.2888 of 2009 filed for an appointment of Advocate Commissioner to take and present before the expert the alleged promissory note for verification has also been ordered and that the remuneration and necessary fees have been paid. 4. According to the Petitioner/Defendant, the Trial Court has not become Functus Officio, insofar as the aforesaid matter is concerned. 5. Advancing his arguments, the Learned Senior Counsel for the Petitioner/Defendant projects an argument that the Trial Court has erred in holding that ' there is no need for the examination of documents by an expert at this stage ', inasmuch as it has already exercised its discretion and decided to send the document for an expert opinion. 6. The prime contention of the Petitioner/Defendant is that his very defence lies only on the expert opinion as sought for by him in I.A.No.7228 of 2007. 7. Finally, it is the submission made by the learned Counsel for the Petitioner/Defendant that despite filing of the verified petition dated 10.12.2009, the impugned order passed by the Trial Court in I.A.No. 2888 of 2009 dated 10.12.2009 is against law and therefore, in the interest of justice, the same is liable to be set aside by this Court. 8. It is evident that the Learned III Assistant Judge, City Civil Court, Chennai in I.A.No.2888 of 2009 in I.A.No.7228 of 2007 in O.S.No.3717 of 2006 on 10.12.2009 has passed the following order: ‘On verification, it is found that in the petition there would not be any existence of documents by exparte at this stage. Hence, heard both by 17.12.2009’ 9. It is evident that the Learned III Assistant Judge, City Civil Court, Chennai in I.A.No.2888 of 2009 in I.A.No.7228 of 2007 in O.S.No.3717 of 2006 on 10.12.2009 has passed the following order: ‘On verification, it is found that in the petition there would not be any existence of documents by exparte at this stage. Hence, heard both by 17.12.2009’ 9. Admittedly, the Revision Petitioner/Defendant filed I.A.No.7228 of 2007 in O.S.No.3717 of 2006 on the file of the learned III Assistant Judge, City Civil Court, Chennai under Section 151 of Civil Procedure Code r/w Order XXVI Rule 10 (A) of Civil Procedure Code praying permission of the Court to issue necessary direction for sending the plaint document Ex.A1 - suit pro-note to the Government Forensic Lab, Chennai for analytical test to ascertain the probable date of the statement written in the alleged pro-note and the signature and filing its report. 10. The prayer in I.A.No.7228 of 2007 has been amended to summon an expert of Forensic Department of Government of Tamil Nadu, Chennai to examine the suit promissory note, compare the signature and assess the probable age of the pro-note with the help of the Revenue Stamp affixed thereon and compare the signature with that of the statement written in the promissory note to ascertain the probable date of both and depose in that regard, as per order dated 14.03.2008 and made in I.A.No.426 of 2008. On 04.11.2008, the Trial Court allowed I.A.No.7228 of 2007, with the following endorsement - no counter endorsed by the Learned Counsel for the Respondent’. 11. The trial Court has issued the warrant of appointment dated 10.07.2009, to the Advocate Commissioner to take the suit promissory note to the Forensic Science Department and file a report. It has also fixed the remuneration of the Advocate Commissioner at Rs.1,500/-. The Advocate Commissioner has submitted the following report dated 30.07.2009, which runs as follows: ‘In pursuance to the Warrant issued to me appointing me as an Advocate Commissioner to take the suit Promissory Note to the Forensic Science Department and to file the report before this Hon'ble Court. As per the direction given in the Warrant the Sealed cover was handed over to me along with the covering letter by the Court Officer on 29.07.2009. As per the direction given in the Warrant the Sealed cover was handed over to me along with the covering letter by the Court Officer on 29.07.2009. On the same day (i.e)., 29.07.2009 at about 5pm I took sealed cover along with a covering letter handed over to me, to the Directorate of Forensic Department, Chennai 600 004 and handed over to the Forensic Department (Documents Section). The Assistant Director, Documents Division Forensic Science Department on seeing the documents given to them, that some more (5 to 10) admittedly genuine signatures (in English) of the person called Tr.K.Sarangan made in the ordinary course of business on existing documents like letters, cheques, with drawls slip any other bank documents, official documents etc., preferably made during the year 2004-2005 and return back the documents along with D.D in a sealed cover and also gave a covering letter addressing to me. Hence the sealed cover returned back by the Forensic Science Department is filed before this Hon'ble Court.’ 12. The Assistant Director, Documents Division of the Forensic Sciences Department, Chennai - 600 004 in his letter C.No.190/2009 dated 29.07.2009, addressed to the learned III Assistant Judge, City Civil Court, Chennai has stated the following: ‘On preliminary examination of the documents received along with your letter cited, it is felt that, some more (5 to 10) admittedly genuine signatures (in English) of the person called 'Tr.K.Sarangan' made in the ordinary course of business on existing documents like letters, cheques, with drawls slip, any other bank documents, official documents etc., preferably made during the year 2004-2005. Hence all the documents are sent herewith in a sealed cover with a request to forward again along with above said material.’ 13. A cursory glance of the confidential notes paper in O.S.No.3717 of 2006 of the Trial Court shows that on 04.11.2008, there is an endorsement that I.A.No.7229 of 2007 (Leave Petition) is pending. Also, the learned III Assistant Judge, City Civil Court, Chennai has made an endorsement in notes paper that ‘I.A.No.7228 of 2007 is allowed for steps to summon the expert of Forensic Department’ and adjourned the matter on 20.11.2008. As on date, the main suit is pending on the file of the Trial Court owing to the pendency of the Civil Revision Petition. 14. As on date, the main suit is pending on the file of the Trial Court owing to the pendency of the Civil Revision Petition. 14. It is to be noted that the Hon'ble High Court can exercise judicial review in addition to administrative / superintendence control over Subordinate Courts / Tribunals within its jurisdiction. The High Court is to keep the lower Courts within its limits, so that, there is no dereliction on duty or negation of the principles of law and justice may take place. 15. Any person who is likely to be affected by the impugned order, even though he is not interested in the property is entitled to make an application under Article 227 of the Constitution. As a matter of fact, the High Court can interfere in case of an erroneous assumption or excess of jurisdiction. Also, the Hon'ble High Court can interfere when the order of Sub-ordinate Court is perverse or based on no material. Indeed, the power of High Court under Article 227 of the Constitution of India cannot be barred by any legislation or taken away short of a constitutional amendment. 16. On going through the order dated 10.12.2009 in I.A.No.2888 of 2009 in O.S.No.3717 of 2006 passed by the Trial Court to the effect that. On verification, it is found that in the petition there would not be any existence of documents by exparte at this stage. Hence, heard both by 17.12.2009’, this Court opines that the said order passed by the trial Court is not lucidly clear as regards the facts or otherwise of the matters in issue. Really speaking, the aforesaid order dated 10.12.2009 of the trial Court is not a sensible and fair one. Till the disposal of the main suit O.S.No.3717 of 2006, the trial Court, in law is seized of the matter. Therefore, it cannot be said, after the appointment of an Advocate Commissioner earlier, the trial Court has become Functus Officio. 17. Inasmuch as the Learned III Assistant Judge, City Civil Court, Chennai is not clear in his mind when he passed orders in I.A.No.2888 of 2009 in O.S.No.3717 of 2006 on 10.12.2009, as referred to supra, this Court opines that the said order which is devoid of necessary outline of process of reasoning is liable to be set aside to prevent an aberration of justice. Accordingly, the same is set aside. Accordingly, the same is set aside. Consequently, the Civil Revision Petition succeeds. 18. In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. Consequently, M.P.No.1 of 2010 is closed. The order passed by the III Assistant Judge, City Civil Court, Chennai in I.A.No.2888 of 2009 in O.S.No.3717 of 2006 dated 10.12.2009 is hereby set aside, for the reasons assigned by this Court in this Civil Revision Petition. Further, Liberty is granted to the parties to move the trial Court for seeking necessary orders either in I.A.No.2888 of 2009 itself or to file an appropriate Interlocutory application, in the manner known to law, if they so desire and advised. Also, the trial Court is directed to provide adequate opportunities to both sides in this regard.