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2015 DIGILAW 1966 (MAD)

R. Sargunan v. K. Saraswathi

2015-04-22

M.DURAISWAMY

body2015
Judgment :- 1. Aggrieved over the fair and final order passed in I.A.No.1166 of 2009 in O.S.No.58 of 2008 on the file of First Additional District Court, Erode, the plaintiff has filed the above Civil Revision Petition. 2. Heard Mr.N. Manokaran, learned counsel for the revision petitioner and Mr.V.Raghavachari, learned counsel for the first respondent, Mr.Guruprasad, learned counsel for the second respondent and Mr.P. Iammanuel Prakasam, learned counsel for the respondents 3 to 5. 3. By consent of the respective counsel, appearing for all the parties, the Civil Revision Petition itself is disposed of by this order. 4. The plaintiff filed a suit in O.S.No.58 of 2008 for Specific Performance of an agreement of sale deed dated 9.5.2007, alleged to have been executed, between the petitioner/plaintiff and the first respondent/first defendant. During the pendency of the suit, the first respondent/first defendant sold the property to the second respondent/second defendant by a registered sale deed dated 30.5.2008, in turn, the second respondent/second defendant sold the property to the respondents 3 to 5/defendants 3 to 5 by a registered sale deed dated 1.9.2008. Therefore, the respondents 2 to 5 were impleaded in the suit as defendants 2 to 5. 5. In the written statement filed by the first defendant, she has taken a defence that the suit agreement is a fabricated and forged documents. In these circumstances, the first defendant filed an application in I.A.No.1166 of 2009 to compare the handwritten matter in the suit agreement by an hand writing expert of the Forensic Department and obtain an opinion on the difference in two inks. 6. The plaintiff filed his counter stating that the comparison by the handwriting expert is unwarranted. 7. The Trial court, after taking into consideration the case of both the parties, allowed the application, finding that the opinion of the handwriting expert will be very much useful to decide the issue, involved in the suit. Aggrieved over the fair and final order passed by the Trial Court in I.A.No.1166 of 2009, the plaintiff has filed the above Civil Revision Petition. 8. This Court, by Order dated 11.2.2010, while ordering notice to the respondents, granted an order of interim stay. Aggrieved over the fair and final order passed by the Trial Court in I.A.No.1166 of 2009, the plaintiff has filed the above Civil Revision Petition. 8. This Court, by Order dated 11.2.2010, while ordering notice to the respondents, granted an order of interim stay. When the matter is taken up for hearing today, the learned counsel appearing for the respondents 3 to 5 submitted that the respondents 3 to 5 had already sold the property to the revision petitioner/plaintiff, by a registered sale deed dated 12.5.2011. Further, the learned counsel submitted that in the said sale deed, it has been recited that the plaintiff wanted to withdraw the suit in O.S.No.58 of 2008, pending on the file of First Additional District Court, Erode. 9. The learned counsel for the first respondent and also the learned counsel appearing for the respondents 3 to 5 submitted that in view of the recital found in the sale deed dated 12.5.2011, the revision petitioner/plaintiff is bound to withdraw the suit and that he cannot set up a case contrary to the recital found in the registered sale deed. 10. Countering the submissions made by the learned counsel appearing for the respondents, the learned counsel appearing for the petitioner submitted that in the present civil revision petition, the issue with regard to the withdrawal of the suit, does not arise and therefore, the contention raised by the respective counsel appearing for the respondents may be kept open and it may be decided by the trial court. 11. In the suit, the first defendant has taken a specific plea that the suit agreement is a fabricated and forged document. No doubt that the burden of proof lies on the plaintiff to establish his case by oral and documentary evidence. Inspite of recital mentioned in the sale deed dated 12.5.2011, the petitioner/plaintiff has not withdrawn the suit, even after a lapse of four years. 12. When the first defendant has taken a plea disputing the signature found in the suit agreement, the plaintiff himself could have filed an application to compare the signature and prove that the signature found in the suit agreement is true and genuine, but, the plaintiff has not filed such application to establish the signature found in the document. The Trial Court has rightly held that the opinion of the handwriting expert would be useful to decide the issue. 13. The Trial Court has rightly held that the opinion of the handwriting expert would be useful to decide the issue. 13. In the case on hand, for the reason that the very dispute is with regard to the genuiness of the document, I am also of the opinion that in order to establish the truth and genuiness of the document, the opinion of the handwriting expert is very useful. Since the issue involved in the present suit is based on the genuiness of the document, in the interest of justice, the signature found in the document should be compared by an handwriting expert. 14. In these circumstances, the trial court has rightly allowed the application. I do not find any error or irregularity in the order passed by the trial court in I.A.No.1166 of 2009 in O.S.No.58 of 2008 on the file of the First Additional District Court, Erode and hence the Civil Revision Petition is liable to be dismissed as devoid of merits. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected MPs are closed.