BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:18/04/2009 CORAM THE HONOURABLE MR. JUSTICE M.VENUGOPAL C.R.P(PD)(MD)No.297 of 2009 and M.P.(MD)No.1 of 2009 Alagupillai ... Petitioner/Plaintiff Vs. T.V.C.Gandhi alias Periyapidaran ... Respondent/Defendant PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India, praying against the fair and decreetal order dated 12.01.2009 made in I.A.No.735 of 2008 in O.S.No.167 of 2007 on the file of the District Munsif Court, Melur. !For Petitioner ... Mr.M.V.Venkataseshan ^For Respondent ... Mr.G.Ethirajulu :ORDER
The revision petitioner/plaintiff has filed this Civil Revision Petition
as against the order dated 12.01.2009 in I.A.No.735 of 2008 in O.S.No.167 of
2007 passed by the learned District Munsif, Melur in dismissing the application
filed by the revision petitioner under Section 45 of the Indian Evidence Act,
praying to get an expert opinion in regard to the thumb impression of the
plaintiff available under Ex.B-1, Registered General Power of Attorney Deed.
2. The trial Court while passing orders in I.A.No.735 of 2008 in
O.S.No.167 of 2007 has opined that the revision petitioner very well knew about
the existence of the Power Deed, but remained silent till the marking of the
same and further without questioning the contents of the Will till filing of the
same into Court by the respondent/defendant and since Ex.B-1 refers to the said
Will, the petitioner wants to deny the execution of Ex.B-1 and that the present
petition is highly belated and appears only to drag on the proceedings and
resultantly, dismissed the application without costs.
3. The learned counsel for the revision petitioner urges before this Court
that the trial Court has not taken into consideration the fact that in Ex.B-1
Power of Attorney, only the alleged thumb impression of the petitioner is
available and therefore, it is necessary that the alleged thumb impression ought
to be proved by an expert and even during the enquiry before the Tahsildar, the
revision petitioner herein has denied the exeuction of the alleged power.
Further, the trial Court has not appreciated the fact that any statement made
before the Tahsildar, being an Administrative authority cannot be taken as a
binding piece of evidence by a Court of Law and therefore, prays for allowing
the Civil Revision Petition in furtherance of substantial cause of justice.
4. It is significant for this Court to point out that the revision
petitioner/plaintiff in I.A.No.735 of 2008 has averred that she has not executed
the Registered General Power of Atternoy either on 22.12.1982 (correct date
being 22.12.1987) or at any point of time and that the General Power of Attorney
document has been created by the respondent/defendant in order to grab the
petitioner’s properties and further, the thumb impression registered at the
Registration Office and in the General Power document are not that of the
petitioner herein and that the same has been created fraudently and therefore,
it is just and necessary that the thumb impression found in Ex.B-1 Registered
General Power deed has to be compared with that of the thumb impression found in
the Plaint and the Vakalath of the case and consequently to obtain the report of
an expert.
5. The respondent/defendant has filed a counter interlia stating that by
virtue of the power deed, no right can be claimed and there are no proper
reasons mentioned in the affidavit for sending the document in question for
comparison to the expert and added further that the expert opinion is not a
conclusive proof. His evidence is like any other witness evidence and
therefore, prays for dismissal of the application.
6. On going through the orders passed by the trial Court in I.A.No.735 of
2008 in O.S.No.167 of 2007, it is quite evident that the trial Court has come to
the conclusion that the revision petitioner has known about the contents of the
said Will, long prior to the filing of the suit, but remained silent without
questioning the same by the respondent/defendant and since Ex.B-1 refers to the
said Will, the petitioner wants to deny the execution of Ex.B-1 and therefore,
the petition is highly belated and appears to have been filed to drag on the
proceedings.
7. When the revision petitioner/plaintiff has made a request in
I.A.No.735 of 2008 in O.S.No.167 of 2007 for sending the power deed in question
to the expert for comparison of the said thumb impression with the thumb
impression of the petitioner available in the Plaint and Vakalath available in
the Plaint, then, this Court is of the considered view that an opportunity must
be given to the revision petitioner/plaintiff to prove her case and also to
produce the best evidence to substantiate the claim made in the Plaint. In
fact, this Court opines that the revision petitioner/plaintiff is the best judge
in what manner she is to prove her case either by adducing oral or documentary
evidence in the manner known to law. A Court of law cannot take the role of an
expert/party and come to a conclusion that present application is a belated one
and that already Ex.B-1 refers to the said Will etc.
8. Be that as it may, this Court without going into the merits of the
case and contraversies involved in the case, sets aside the order passed by the
trial Court in I.A.No.735 of 2008 in O.S.No.167 of 2007, since the same is not
legally correct in the eye of law and further directs the trial Court to restore
the I.A.No.735 of 2008 to file and to dispose of the same afresh after
providing opportunities to both parties, keeping in mind that the well laid down
principles of Law. However, there shall be no order as to costs. Further, the
trial Court is directed to dispose of the I.A.No.735 of 2008 in O.S.No.167 of
2007, within a period of three weeks from the date of receipt of a copy of this
order and the trial Court shall deal with the I.A.No.735 of 2008 uninfluenced by
any of the observations made by this Court in this revision.
With the above direction, this civil revision petition is disposed of.
Resultantly, the connected Miscellaneous Petition is closed.
DP
To
The District Munsif, Melur.