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2022 DIGILAW 403 (MAD)

D. Santhamani @ Santhi v. S. Vijayanandan

2022-02-14

S.KANNAMMAL

body2022
JUDGMENT : (Common Prayer: These Civil Revision Petitions have been filed, under Article 227 of the Constitution of India, to set aside the fair and decreetal orders, made in I.A.Nos.6, 7 & 8 of 2021 in O.S.No.456 of 2018, dated 06.09.2021, on the file of the II Additional District Court, Tiruppur.) 1. These Civil Revision Petitions have been filed, against the fair and decreetal orders, made in I.A.Nos.6, 7 and 8 of 2021 in O.S.No.456 of 2018, dated 06.09.2021, on the file of the II Additional District Court, Tiruppur. 2. The facts of the case, in a nutshell, are that the respondent herein is the plaintiff and the petitioners are the defendants in the suit in O.S.No.456 of 2018. The above suit has been filed against the petitioners/defendants, to recover the suit claim of Rs.22,80,000/- along with interest @ 12% per annum from 26.09.2017 from the date of the suit till the date of realisation and for costs. Pending suit, the petitioners herein have filed the Interlocutory applications in I.A.Nos.6, 7 and 8 of 2021 before the trial Court, seeking to summon “the Sub-Registrar, Sub Registrar office, Nallur” to cause production the original of document No.1691/2015 and to appoint a scientific expert and also an Advocate Commissioner to take possession of original Pro-Note dated 25.05.2017 (Ex.A1) along with the admitted documents and to deliver the same to the Forensic Department, State of Tamil Nadu and to secure a report with respect to alleged LTI (Left Thumb Impression) of the husband of the 1st defendant viz., (late) Duraisamy found in Ex.A1 and also to summon “Union Bank of India, Tiruppur Branch, Tiruppur” to cause production the original of document No.1691/2015. The trial Court after hearing both parties, dismissed the applications by a common order, dated 06.09.2021, against which these Civil Revision Petitions have been filed. 3. This Court heard the learned counsel for the petitioners and the respondent and also carefully perused the materials placed on record. 4. The petitioners are the defendants in the suit in O.S.No.456 of 2018 which was filed by the plaintiff/respondent herein for recovery of money. 3. This Court heard the learned counsel for the petitioners and the respondent and also carefully perused the materials placed on record. 4. The petitioners are the defendants in the suit in O.S.No.456 of 2018 which was filed by the plaintiff/respondent herein for recovery of money. The petitioners are the legal heirs of the deceased Duraisamy who alleged to have executed a promissory note for a sum of Rs.20 lakhs and to clear the principle amount, the deceased Duraisamy had issued a cheque of Rs.20 lakhs to the respondent herein and when the cheque was failed to fetch its value, a legal notice was sent and a Criminal Case has also been registered against the deceased Duraisamy in STC No.158 of 2018 and the same is now pending. The respondent/plaintiff after coming to know the death of Duraisamy, had instituted the suit for recovery of Rs.22,80,000/- against the petitioners who are the legal heirs of the deceased Duraisamy. 5. The petitioners herein filed written statement denying the allegations made by the respondent and stated that the respondent is totally a stranger and the deceased Duraisamy had no transaction whatsoever with the plaintiff at any point of time. It has been specifically stated by the petitioners that the said deceased Duraisamy had chit transaction with one Padmanabhan and towards the said transaction, the plaint mentioned cheque and Pro note were given in blank form containing his signature only to the said Padmanabhan. It is further stated in the written statement that the chit transaction was settled long back and there is no due and payable by the said deceased Duraisamy to the said Padmanabhan. However, the said Padmanabhan with the dishonest intention, misused the pro note and bank cheque and set up the respondent herein to file a false suit. 6. Before the trial Court, the respondent herein was examined as P.W.1 and one Viswanathan was examined as P.W.2 and when the suit is pending for defendants side evidence, the petitioners have filed the Interlocutory applications in I.A.Nos.6, 7 and 8 of 2021. 7. The learned counsel for the petitioners submitted that the respondent herein has not filed the original promissory note which is alleged to have been executed by the deceased Duraisamy and the same was produced only during the examination of respondent. 7. The learned counsel for the petitioners submitted that the respondent herein has not filed the original promissory note which is alleged to have been executed by the deceased Duraisamy and the same was produced only during the examination of respondent. On perusal of the same, it was found that the thumb impression in the pro note was a forged one and the same was not that of the deceased Duraisamy. The learned counsel would further submit that in order to prove the thumb impression found in Ex.A1, Promissory note is not that of the deceased Duraisamy, the petitioners herein have filed the three interlocutory applications. I.A.No.6 of 2021 is filed seeking to summon “the Sub-Registrar, Sub Registrar office, Nallur” to cause production of the original petition mentioned document which contains the LTI of the deceased Duraisamy to compare the same and to prove the alleged LTI in pro note is a forged one. I.A.No.7 of 2021 is filed to appoint a scientific expert and also an Advocate Commissioner to take possession of original Pro-Note dated 25.05.2017, Ex.A1, along with the admitted documents and to deliver the same to the Forensic Department, State of Tamil Nadu and secure a report with respect of the alleged LTI of Duraisamy found in Ex.A1. Yet another petition in I.A.No.8 of 2021 was filed by the petitioners to summon Union Bank of India, Tiruppur Branch, Tiruppur to cause production of original of the petition mentioned document i.e., “the memorandum of deposit of the Title Deed” executed by the deceased P.Duraisamy and P.A.Palanisamy in favour of “Corporation Bank, Tirupur Branch, Tiruppur” registered as Document No.1691 / 2015 (Book No.1). 8. The respondent herein filed counter and sought for dismissal of the applications on the ground that the above petitions were filed by the petitioners only to drag on the proceedings. 9. The trial Court after hearing both parties, dismissed the three Interlocutory applications on the ground that the petitions were filed belatedly even though the petitioners know about the existence of thumb impression from the date of suit. Aggrieved against the same, the petitioners herein have filed the present Civil Revision Petitions. 9. The trial Court after hearing both parties, dismissed the three Interlocutory applications on the ground that the petitions were filed belatedly even though the petitioners know about the existence of thumb impression from the date of suit. Aggrieved against the same, the petitioners herein have filed the present Civil Revision Petitions. No doubt, this Court in CRP (PD) No.2185 of 2019, dated 04.03.2021 had directed the trial Court to dispose of the suit on or before 04.03.2021 and subsequently the time for disposing of the suit has been extended till 31.10.2021 on the request made by the trail Court. In the meantime, the petitioners have filed a petition to receive additional written statement and the same was dismissed and against which, the petitioners once again preferred a revision in CRP (PD) No.992 of 2021 before this Court and this Court again directed to dispose of the suit on or before 31.10.2021, confirming the earlier order of this Court made in CRP (PD) No.2185 of 2019, dated 04.03.2021. 10. It is the submission of the learned counsel for the petitioners that it has been specifically stated by the petitioners in their written statement that the deceased Duraisamy had given the plaint mentioned cheque and pro note in blank form containing his signatures only to Padmanabhan and the said Padmanabhan with dishonest intention, had given the same to the respondent which leads to the filing of the false suit. While so, the respondent herein had produced the original pro note only during the time of examination of the respondent and on perusal of the same, the petitioners came to understand that the thumb impression of the deceased Duraisamy has been forged and is not that of the deceased Duraisamy. The learned counsel would also rely on paragraph No.20 of the order made in CRP (PD) No.992 of 2021 which was filed by the petitioners against the dismissal of the petition, seeking to file additional written statement wherein this Court observed that the genuineness or otherwise of the thumb impression can be determined only if it is compared with the thumb impression affixed by the very same person and unfortunately the said Duraisamy is now no more alive and directed the II Additional District Judge, Tiruppur to record such evidence in chief and to give a finding after analysing the cross examination on that aspect. But when the original document executed by the deceased Duraisamy is well available with the Bank and Sub Registrar Office and in order to establish the contention that the thumb impression found in Ex.A1 is not that of the deceased Duraisamy, the same may be summoned as the documents are very essential to compare the LTI of the deceased Duraisamy Ex.A1, promissory note. However, the trial Court had dismissed those petitions on the ground that those petitions were filed very belatedly. 11. The learned counsel relied on the Judgment reported in (2017) (3) LW 425 in G.Vasanth Vrs. Sri.Maharaja Kallash Benefit Fund Ltd., and submitted that as there is a material alteration in the promissory note, the same is void as against the deceased Duraisamy and in order to substantiate their contention, the petitioners have filed those Interlocutory Applications and the trial Court had dismissed those applications on the ground that as though the petitions were filed belatedly to drag on proceedings. This Court in CRP (PD) No.992 of 2021, had clearly given a finding that the petitioners are entitled to deny the thumb impression of the deceased Duraisamy in the promissory note. As the said Duraisamy is not alive, the admitted signature could not be obtained. However, the original document having thumb impression of the deceased Duraisamy available with the Union Bank of India and the Sub Registrar Office, Nallur, those documents could be secured and send them to the forensic lab to compare the same with the LTI. 12. In view of the above discussions and when the petitioners at the earliest point, had clearly stated in their statement that the promissory note and cheque were given in blank form containing the signature only to Padmanabhan and the said Padmanabhan with dishonest intention colluded with the respondent and given the cheque and pro note to the respondent which leads to the filing of the false suit, this Court is inclined to give an opportunity to the petitioners to substantiate their contention. No prejudice is going to be caused to the respondent if these petitions are allowed. But if these petitions are dismissed, the valuable right of proving the contention of the petitioner would be defeated. Hence, the order dated 06.09.2021 made in I.A.Nos.6, 7 and 8 of 2021 is hereby set aside. The Civil Revisions Petitions are allowed. No prejudice is going to be caused to the respondent if these petitions are allowed. But if these petitions are dismissed, the valuable right of proving the contention of the petitioner would be defeated. Hence, the order dated 06.09.2021 made in I.A.Nos.6, 7 and 8 of 2021 is hereby set aside. The Civil Revisions Petitions are allowed. The trial Court viz., II Additional District Judge, Tirupur is directed to dispose of the suit in O.S.No.456 of 2018 on merits, within a period of four months from the date of receipt of a copy of this Order. No costs. Consequently, connected miscellaneous petition is closed.