KALAISELVAN Vs. VELUSAMY

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed challenging the order dated 09.10.2006, made in I.A.No.279 of 2005, in A.S.No.72 of 2005, on the file of the learned District Judge, Karur.

(2.) BRIEF facts of the case are as follows:- The petitioner herein has filed the suit in O.S.No.73 of 2003, on the file of the learned Subordinate Judge, Kulithalai, against the respondents herein for specific performance on the basis of an alleged written agreement dated 20.01.2003. The respondents herein have filed a detailed written statement, wherein they have denied the execution of the sale agreement and alleged that the said document has been fraudulently created by committing forgery. Ultimately, on completing the trial, the learned Subordinate Judge, decreed the suit by an order dated 30.09.2004 in favour of the plaintiff. Challenging the said decree, the first respondent herein has filed an appeal in A.S.No.72 of 2005, before the learned District Judge, Karur. During the pendency of the said appeal, the first respondent who is the first defendant in the said suit has filed I.A.No.279 of 2005, praying for an appointment of Advocate Commissioner to take Ex.A.1, original sale agreement dated 20.01.2003, for comparison by the Hand Writing Expert namely, the Superintendent of Police (FD), Tamilnadu Finger Print Bureu, Mylapore, Chennai " 4. In support of the said application, the first respondent has filed an affidavit wherein, he has stated that even while the suit was pending before the trial Court, a similar application in I.A.No.141 of 2004, was filed seeking to send the document for comparison and the same was dismissed on the ground that it was filed after the commencement of the trial. He has further averred that he has intended to file a revision challenging the said order of dismissal by obtaining a certified copy. But, before the same could be done, the trial was completed by the trial Court. He has further averred that a stay petition filed by him before the lower Court was also dismissed and judgment was pronounced in the suit. He has further averred that, because of the above said reasons, he could not file any revision, challenging the order of the trial Court refusing to send the document for comparison and hence, I.A.No.279 of 2005, has been filed at the appellate stage. He has further averred that, the dismissal of the earlier application and non filing of any revision would not operate as res judicata to maintain the present petition.

(3.) THE order of the learned Subordinate Judge dated 23.09.2004, made in I.A.No.141 of 2004, has been produced for perusal of the Court. In the operative portion of the said order, the learned Subordinate Judge has stated that the prayer for comparison of the document in question by an Expert cannot be allowed since the Interlocutory Application has been filed at the belated stage that too after the evidence was closed. THE learned Subordinate Judge has further stated that the disputed signature of the document can very well be compared by the Court itself with the admitted signature of the first defendant and therefore, appointing an Advocate Commissioner to take the document to the Expert is unnecessary. THE learned Subordinate Judge has further stated that from the evidence of the witnesses and the circumstances of the case, it can be safely concluded, whether the disputed signature was made by the first respondent or not. On these three grounds, the learned Subordinate Judge has dismissed the application. Of course, the first respondent should have preferred a revision against the said order but the same has not been done. In the affidavit, filed in support of I.A.No.279 of 2005, the first respondent has explained the reasons for not preferring such a revision challenging the order of the learned Subordinate Judge. He has specifically stated that he has obtained the certified copy of the said order with an intention to file revision, but before he could file a revision, the trial was completed. THEre is some force in the statement made by the first respondent in his affidavit. A perusal of the order of the learned Subordinate Judge would show that the order in I.A.No.141 of 2004 was delivered on 23.09.2004 and the suit was decreed on 30.09.2004, i.e., within seven days which includes two weekly holidays. Thus, the reasons stated in the affidavit for failure to file revision, before the suit was decreed, is not only reasonable but also acceptable.