SUNDARAMOORTHY Vs. R PALANISAMY

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed by the petitioner/plaintiff to set aside the order dated 11.03.2008 passed in I.A.No.79 of 2008 in O.S.No.81 of 2007 on the file of Additional District Court, (F.T.C.), Erode.

(2.) THE plaintiff in O.S.No.81 of 2007 is the revision petitioner before this Court. THE suit in O.S.No.81 of 2007 was filed by the petitioner/plaintiff for recovery of money for a sum of Rs.6,46,000/- with interest. Written statement has been filed by the respondent/defendant and the suit is being contested. Pending suit an application in I.A.No.656 of 2007 was filed by the respondent/defendant to send the disputed documents to Forensic Science Department at Chennai to ascertain the age of the ink found in the disputed promissory note. However, the said application was withdrawn as not pressed by the respondent/defendant on 11.01.2008. THEreafter, an application in I.A.No.79 of 2008 was filed by the very same respondent/defendant under Section 45 of the Indian Evidence Act to send the suit promissory note to find out the age of the ink, through a Commissioner to be appointed in the above matter to hand over the original suit promissory note to the Director of Forensic Science, Government of India, attached to the office of the Government Examiner of questioned Documents, CFI Complex, Ramanathpur, Hyderabad-13 and get back the said original suit promissory note after getting the Expert's opinion. THE said application was resisted by the petitioner/plaintiff by filing a counter. THE trial Court by order dated 11.03.2008 allowed the application and appointed an Advocate Commissioner. Aggrieved by the same, the above civil revision petitioner has been filed by the plaintiff.

(3.) THE learned counsel for the petitioner/plaintiff would submit that the trial Court has mis-directed itself in allowing the application for sending the original promissory note to find out the age of the ink of the writings and the signature found in the promissory note. According to him, a similar application filed by the respondent/defendant earlier was withdrawn as not pressed by the respondent/defendant during January, 2008 without obtaining liberty to file another petition and thereafter for the very same purpose, the present application in I.A.No.79 of 2008 was filed by the respondent/defendant, and the same has been allowed. THErefore, he adds that the failure on part of the trial Court to take note of this fact, which was withdrawn as not pressed by the respondent/defendant vitiates the order and the order is hence bad. THE learned counsel for the petitioner would further submit on merits that this Court in earlier judgment in S. Gopal Vs. D.Balachandran reported in (2009(1) CTC 491), has been observed that "the age of the ink cannot be determined, on the basis of the writing the ink in dispute was manufactured five years prior to the date of execution of the document and used effectively on a particular dated for the first time and an experts opinion as age of ink will not resolve any controversy, but it will help to create only confusion." THErefore, according to the learned counsel for the petitioner that no useful purpose would be served by sending the promissory note to ascertain the age of the ink.