BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/04/2007 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRP.(PD) (MD) No.983 of 2006 and M.P (MD) No.1 of 2006 Kalaiselvan ... Petitioner Vs 1. Velusamy 2. Anadhi ... Respondents Prayer This Civil Revision Petition has been filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 19.10.2006 made in I.A.No.279 of 2005 in A.S.No.72 of 2005 on the file of the District Judge, Karur. !For Petitioner ... Mr.K.Govindarajan ^For Respondents ... Mr.N.R.Prabhakar for Mr.T.M.Hariharan :O R D E R
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 petitioner herein has filed a detailed counter in I.A.No.279 of
2005, wherein he has stated that it is untenable to prefer the said application
at the stage of appeal, in view of the fact that there is no revision filed
challenging the order in I.A.NO.141 of 2004, passed by the trial Court, refusing
to send the document for comparison. He has further stated that, the trial Court
itself has compared the admitted signature found in the other records and it has
come to the right conclusion that the signature has been made only by the first
defendant and therefore, it does not require any more comparison by an Expert.
He has further stated that while exercising the power of appeal, even the
appellate Court can very well compare the disputed signature with the admitted
signature, and come to a right conclusion. Therefore appointment of an Advocate
Commissioner is not at all sustainable.
4. I have considered the rival contentions made by the learned counsel for
the petitioner as well as the learned counsel for the respondents and also
perused the records. According to the plaint averments the disputed sale
agreement was executed by the first respondent/first defendant on 20.01.2003.
The first respondent/first defendant in the written statement has denied the
execution of the said document and he has made a specific plea that the said
sale agreement is a forged, fabricated, concocted and created one. It is also
the admitted case that before the trial Court, the first respondent herein has
filed I.A.No.141 of 2004, requesting the Court to send the disputed document
Ex.A.1, to an Expert viz, The Superintendent of Police (FP), Tamilnadu Finger
Print Bureu, Mylapore, Chennai – 4. Admittedly, the said application was
dismissed.
5. 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.
6. After the suit was decreed, we cannot expect the first respondent to
prefer any revision challenging the order of the learned Subordinate Judge made
in I.A.No.141 of 2004, as the same would be only a futile exercise as it would
be infructuous. Therefore, he has raised this point as one of the grounds of
appeal.
7. It could be seen from the records that without any further delay,
during the pendency of the appeal, the I.A.No.279 of 2005, has been filed before
the learned District Judge, Karur, with the same prayer asked for in the earlier
application in I.A.No.141 of 2004. The contention of the learned counsel for the
respondents is that the earlier order dismissing the prayer of the first
respondent made in I.A.No.141 of 2004, operates as res judicate for making the
present application in I.A.No.279 of 2005. The said plea cannot be accepted for
the following reasons:-
(i) The learned counsel for the petitioner has relied on the judgment
reported in AIR 1960 Supreme Court 941 (V 47 C 167) wherein, the Hon’ble Supreme
Court in paragraph Nos.7, 8, 21 and 22 has held as follows:-
7. The principle of res judicata is based on the need of giving a finality to
judicial decision. What is says is that once a res is judicata, it shall not be
adjudged again. Primarily it applies as between past litigation and future
litigation. When a matter – whether on a question of fact or a question of law –
has been decided between two parties in one suit or proceeding and the decision
is final, either because no appeal was taken to a higher court or because the
appeal was dismissed, or no appeal lies, neither party will be allowed in a
future suit or proceeding between the same parties to canvass the matter again.
This principle of res judicata is emboddied in relation to suits in S.11 of the
Code of Civil Procedure, but even where S.11 does not apply, the principle of
res judicata has been applied by courts for the purpose of achieving finality in
litigation. The result of this is that the original court as well as any higher
court must in any future litigation proceed on the basis that the previous
decision was correct.
8. The principle of res judicata applies also as between two stages in the same
litigation to this extent that a court, whether the trial court or a higher
court having at an earlier stage decided a matter in one way will not allow the
parties to re-agitate the matter again at a subsequent stage of the same
proceedings. Does this however mean that because at an earlier stage of the
litigation a court has decided an interlocutory matter in one way and no appeal
has been taken there from or no appeal did lie, a higher court cannot at a later
stage of the same litigation consider the matter again ?”
8. In the same Judgment, the Hon’ble Suprement Court in paragraph Nos.21
and 22, has held as follows:-
“21……Interlocutory orders which have the force of a decree must be
distinguished from other interlocutory orders which are a step towards the
decision of the dispute between parties by way of a decree or a final order.
Moheshur Singh’s Case, Forbes’ Case and Sheonath’s case dealt with interlocutory
judgments which did not terminate the proceedings and led up to a decree or
final order. Ram Kirpal Shukul’s Case, Bani Ram’s Case and Hook’s case deal with
judgments which though called interlocutory, had, in effect, terminated the
previous proceedings. These cases are therefore of no assistance to the learned
counsel for the respondent in his argument that the order of remand made by the
High Court not having been appealed from to this Court the correctness of that
order cannot be challenged now.
22. In our opinion the order of remand was an interlocutory order which
did not terminate the proceedings and so the correctness thereof can be
challenged in an appeal from the final order……..”
(ii) On the strength of the said Judgment, the learned counsel for the
petitioner would contend that since in I.A.No.141 of 2004, a similar request of
the first respondent has been rejected by the trial Court, applying the
principle of res judicata, the lower Appellate Court ought to have dismissed the
present I.A.No.279 of 2005. But, in the case on hand, the said principle of law
cannot be applied as the facts are entirely different. To apply the principle of
res judicata, first of all, the matter whether on a question of fact or in a
question of law should have been decided finally on an earlier occasion by the
same Court or some other court in the same proceedings or in the same suit etc.
9. Here in my view, the earlier order passed by the learned Subordinate
Judge is not on merits. As pointed out earlier, the said order has been passed
on the three grounds namely, (1) the application has been filed belatedly; (2)
the Court itself can compare the disputed signature with the admitted signature
and (3) the signature could be proved by means of oral evidence or other
circumstances. The order of the learned Subordinate Judge on these three grounds
cannot be considered to be a final order on the question of fact so as to apply
the rule of res judicata.
10. Further, the order of the learned Subordinate Judge has not terminated
the litigation. The order dismissing the application to send the document for
comparison by the learned Subordinate Judge also has not decided the question
whether the disputed signature was made by the first respondent/first defendant
or not. Therefore, the decision of the learned Subordinate Judge cannot be
construed to be a final order with reference to the facts involved in the
instant case to apply the principle of res judicata. The learned counsel for the
petitioner would rely on the another Judgment reported in AIR 1964 Supreme Court
993 (V 51 C 128) (Arjun Singh Vs. Mohindra Kumar and others) the Hon’ble Supreme
Court in paragraph No.13 has held as follows:-
“13. It is needless to point out that interlocutory orders are of various
kinds; some like orders of stay, injunction or receiver are designed to preserve
the status quo pending the litigation and to ensure that the parties might not
be prejudiced by the normal delay which the proceedings before the court usually
take. They do not, in that sense, decide in any manner the merits of the
controversy in issue in the suit and do not, of course, put an end to it even in
part. Such orders are certainly capable of being altered or varied by subsequent
applications for the same relief, though normally only on proof of new facts or
new situations which subsequently emerge. As they do not impinge upon the legal
rights of parties to the litigation the principle of res judicata does not apply
to the findings on which these orders are based, though if applications were
made for relief on the same basis after the same has once been disposed of the
court would be justified in rejecting the same as an abuse of the process of
Court. There are other orders which are also interlocutory, but would fall into
a different category. The difference from the ones just now referred to lies in
the fact that they are not directed to maintaining the status quo, or to
preserve the property pending the final adjudication, but are designed to ensure
the just, smooth, orderly and expeditious disposal of the suit. They are
interlocutory in the sense that they do not decide any matter in issue arising
in the suit, nor put an end to the litigation.”
11. I have gone through the above Judgment of the Hon’ble Superme Court.
Instead of supporting the case of the petitioner, it supports only the case of
the respondent. The Hon’ble Supreme Court has categorised the orders into two
grounds. Those orders in the Interlocutory Applications which do not finally
decide any matter, any issue arising in the suit, or put an end to the
litigation form the first category. With reference to those orders, falling
under the said category there is no question of applying the principle of res
judicata. The second category is that, which finally decide the issue arising in
the suit and put an end to the litigation. In the case on hand, the order made
by the learned Subordinate Judge has neither finally decided the issue involved
in the case nor terminated the suit. Therefore, this order would not fall within
the second category of the order as observed by the Hon’ble Supreme Court, but
it would certainly fall within the first category of Interlocutory order against
which the rule of res judicata cannot be applied.
12. The learned counsel for the respondents would rely on the Judgment
reported in AIR 1979 Supreme Court 1436 (Smt. Sukhrani v. Hari Shanker) wherein
the Hon’ble Supreme Court in paragraph No.5 has held as follows:-
5. It is true that at an earlier stage of the suit, in the proceeding to set
aside the award, the High Court recorded a finding that the plaintiff was not
entitled to seek reopening of the partition on the ground of unfairness when
there was neither fraud nor misrepresentation. It is true that the plaintiff did
not further pursue the matter at that stage by taking it in appeal to the
Supreme Court but preferred to proceed to the trial of his suit. It is also true
that a decision given at an earlier stage of a suit will bind the parties at
later stages of the same suit. But it is equally well settled that because a
matter has been decided at an earlier stage by an interlocutory order and no
appeal has been taken therefrom or no appeal did lie, a higher Court is not
precluded from considering the matter again at a later stage of the same
litigation.”
13. The above principle laid down by the Hon’ble Supreme Court also
supports the case of the respondents that the rule of res judicata is not
applicable to the case on hand.
14. At this juncture, it is to be rememberd that substantial justice
should be rendered in any case and the same should not be allowed to fail only
on a technical ground. In this case, when there is a serious dispute regarding
the author of the signature found in the sale agreement, it is decirable that
the disputed signature is examined by an expert so as to assist the Court to
come to a right conclusion. Of course, the Court can very well compare the
disputed signature with the admitted signature to come to a conclusion, but it
does mean that the Court should always compare the signature without getting the
assistance of an Expert for the said purpose. In this regard, the lower Court
has rightly relied on the Judgment of this Court reported in 2003 (3) L.W 649
(Palaniammal v. Palanisamy) and has come to the correct conclusion that, it is
better to send the document for comparison by an Expert to decide whether the
disputed signature was made by the first respondent or not.
15. If it is the case of the petitioner that the I.A., has been filed only
with a view to drag on the proceedings by the respondents, it can be certainly
considered. But in the case on hand, even during the pendency of the suit, as
well as during the pendency of the appeal, the first respondent has made the
request to send the document for comparison, so as to establish that the
disputed signature was not made by him. By getting the assistance of an Expert,
whether the disputed signature and the admitted signature is tally with each
other or not, the case of the petitioner is no way going to be prejudiced. As a
matter of fact, to render justice it is always desirable to have the assistance
of the Expert to offer his opinion, which would be certainly helpful for the
Court. Thus, none of the contentions raised by the learned counsel for the
petitioner could be countenanced.
16. For all these reasons, I do not find any irregularity or illegality in
the order of the learned District Judge warranting interference by this Court
under Article 227 of the Constitution of India. In the result, the order of the
learned District Judge, Karur dated 09.10.2006, made in I.A.No.279 of 2005 in
A.S.No.72 of 2005, is hereby confirmed. The civil revision petition is
dismissed. No costs. Consequently, connected M.P is closed.
Jbm
To
1. The Subordinate Judge,
Kulithalai.
2. The District Judge,
Karur.