P PALANISWAMI GOUNDER DEAD Vs. C SWAMINATHAN

JUDGEMENT

(1.) The deponent of the affidavit contends as follows: The petitioner has filed a suit for recovery of Rs. 30,790/-- from the respondent herein on the file of Sub Court and obtained a decree on 29-2-1984. The respondent has filed an appeal and it was ordered to deposit a sum of Rs. 5,000/-- in Court in CMP No. 6291 / 1984. The respondent deposited the amount. He has been directed to give an undertaking not to alienate the bus. The appellant herein filed an application before the lower Court to send the thumb impression in Ex. A.1 and the thumb impression of the appellant taken in Court to the Forensic Science Department. The Experts have given their opinion that the impressions are identical and the same. This finding is against the appellant. The appellant failed to mark the document. As the expert opinion was against him, the applicant's father filed an application to examine the Expert. The lower Court after perusal of the opinion of the Expert. had drawn an adverse inference against the appellant and gave a finding that Ex. A.1 is not a forged document. The expert opinion was not marked in the trial Court. Marking of the same is not going to alter the plaintiff's case. It will held the Court to come to a conclusion regarding the finding of the lower Court. Hence the application to receive the certified copy of the documents, filed as additional evidence.

(2.) C. M. P. No. 16486/ 1995 :-- The deponent of the affidavit contends as follows: The Petitioner has filed a suit and obtained a decree against the respondent-appellant for Rs. 30,790/- Against the same, the respondent has preferred an appeal. A sum of Rs. 5,000/--was ordered to be deposited in the trial Court and the respondent has deposited the same. The appellant filed an application to send Ex.A.1 thumb impression and thumb impression of the appellant taken in open Court to Forensic Science Department. As Experts have given an opinion that they are the same, the document therefore was not marked by the appellant. But the lower Court went through the Experts opinion and gave its finding. The applicant has filed an application to receive the Expert opinion as additional evidence. The present application is to call for the report of the Expert's opinion and mark the same as Court Exhibits. Hence the petition.

(3.) In common counter, the respondent contends as follows. It is not correct to say that the respondent has deposited only Rs. 5,000/-. He had actually paid a sum of Rs.10,000/-- by draft. The petitioner has suppressed the same. When the appeal is in a part-heard stage, the present petitions have been filed. There is no reason as to why the Expert opinion has not been marked in the trial Court. There is no reason as to why the Expert has not been examined in the trial Court. As per Order 41, Rule 27(1) of the Civil P.C. it must be satisfied that notwithstanding the exercise of the deligence, the evidence was not within the knowledge of the petitioner or could not be produced by him in time. The plaintiff has not given any such reason. The petitioner cannot now seek to examine the Expert and mark the opinion as additional evidence. The petitioner was contented with the evidence of P.W. 1. He cannot be allowed to fill up the lacuna 12 years after the judgment. The Expert opinion cannot be marked in evidence. The opinion itself has been given at the instigation of the Sambandhi of the plaintiff who was a Deputy Superintendent of Police in the Police Department. The petitioners themselves have stated that the marking of the Expert's opinion is not going to imporve the plaintiff's case. No prejudice will therefore, be caused if the petitions are dismissed. The petitioner cannot practically reopen the trial under the pretext of marking the Expert's opinion. The petitions are therefore, liable to be dismissed.