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2014 DIGILAW 839 (MAD)

Mahalakshmi v. Noorinisha Begum

2014-04-04

R.KARUPPIAH

body2014
Judgment : 1. The civil revision petition has been filed against the fair order and decretal order dated 08.04.2009 passed in I.A.No.1564 of 2008 in O.S.No.161 of 2004 on the file of the District Munsif, Perambalur. 2. The revision petitioner herein is the third defendant and the respondent herein is the plaintiff in the original suit in O.S.No.161 of 2004. 3. The respondent/plaintiff filed a suit in O.S.No.161 of 2004 for partition. Pending the suit, the revision petitioner/third defendant filed an application in I.A.No.1564 of 2009 praying to send Ex.B.7, unregistered mortgage deed, alleged to have been executed by the deceased Khader Bee, to the Expert for comparing thumb impression and to obtain opinion from the expert . 4. In the affidavit, it is stated that the deceased Khader Bee, mother of the first and the second defendants, obtained a loan of Rs.2,00,000/- from the husband of the revision petitioner/third defendant by executing an unregistered mortgage deed, wherein the deceased affixed her thumb impression. But, it was denied by the first and second defendants and also the respondent/plaintiff. Therefore, the revision petitioner filed the application for the above stated relief. 5. The respondent/plaintiff filed a detailed counter, wherein it is stated that the revision petitioner did not file any other document to compare the thumb impression of the deceased Khader Bee and the application was filed only to drag on the proceedings. 6. The trial Court, after considering the arguments advanced by both sides and finally held that the suit is filed for partition as against the defendants 1 and 2 but the revision petitioner, who is the third defendant in the suit impleaded only as a tenant. The trial Court further held that the oral evidence of the respondent/plaintiff, defendants 1 and 2 and one another witness viz., the husband of the revision petitioner/third defendant were over and the suit was posted for chief examination of the revision petitioner/third defendant. At this stage, the application has been filed to send the alleged document, Ex.B.7 the unregistered mortgage deed for comparison of thumb impression of the deceased Khader Bee. But, the revision petitioner has not filed any other document for comparing the thumb impression with the alleged document and therefore, the application is not maintainable. At this stage, the application has been filed to send the alleged document, Ex.B.7 the unregistered mortgage deed for comparison of thumb impression of the deceased Khader Bee. But, the revision petitioner has not filed any other document for comparing the thumb impression with the alleged document and therefore, the application is not maintainable. It is also held that the suit is only for partition and it has to be decided whether the respondent/plaintiff is entitled to partition or not and the revision petitioner/third defendant, who is the alleged tenant, has not mentioned in the affidavit that which document is to be compared with the Ex.B.7, unregistered mortgage deed. Further, the trial Court held that the application has been filed only to drag on the proceedings of the suit and hence, dismissed the application. 7. The learned counsel for the revision petitioner submitted that now the revision petitioner is ready to produce the document, which is available to compare the thumb impression of the deceased Khader Bee and therefore, he prayed to set aside the order passed by the trial Court and permit the revision petitioner to take steps to compare the thumb impression of Khader Bee, mother of the defendants 1 and 2 with the available document. 8. Admittedly, the revision petitioner has not stated anything in the affidavit the detail of the document which is available for comparison of thumb impression of the deceased Khader Bee. The trial Court dismissed the application only on maian ground that the revision petitioner has not filed any other document for comparison of the thumb impression. Now, the learned counsel for the revision petitioner submitted that the relevant document is available with the revision petitioner and hence, the revision petitioner sought permission of this Court to compare the thumb impression of Ex.B.7. The permission sought for by the revision petitioner to produce the said document for comparison of the thumb impression found in Ex.B.7, unregistered mortgage deed cannot be accepted at this stage, as it is a belated one. 9. Further, as rightly held by the trial Court already the oral evidence of the plaintiff, defendants 1 and 2 and the husband of the revision petitioner/third defendant were over, the application filed by the revision petitioner cannot be entertained at this stage. Therefore, the order passed by the trial Court is valid in law and not perverse. 9. Further, as rightly held by the trial Court already the oral evidence of the plaintiff, defendants 1 and 2 and the husband of the revision petitioner/third defendant were over, the application filed by the revision petitioner cannot be entertained at this stage. Therefore, the order passed by the trial Court is valid in law and not perverse. Hence, this Court is of the view that need not interfere with the order passed by the trial Court. 10. In the result, this civil revision petition is dismissed. The order passed in I.A.No.391 of 2006 in O.S.No.11 of 2006 is confirmed No costs. Consequently, miscellaneous petition is closed. The trial Court is directed to dispose of the suit within a period of four months from the date of receipt of a copy of this order.