IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.12.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD) No.62 of 2008 and M.P.No.1 of 2008
Amsaveni ... Petitioner
Vs.
1. R.Venkatachalam
2. C.Subramaniam ... Respondents
This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 11.12.2007 passed in I.A.No.2523 of 2007 in O.S.No.225 of 2006 on the file of the Additional District Judge, Fast Track Court No.IV, Coimbatore at Tiruppur.
For Petitioner : Mr.N.Manokaran
For Respondent : Mr.S.S.Swaminathan
*****
O R D E R
This Civil Revision Petition has been filed against the order dated 11.12.2007 passed in I.A.No.2523 of 2007 in O.S.No.225 of 2006 on the file of the Additional District Judge, Fast Track Court No.IV, Tiruppur.
2. The defendant in O.S.No.225 of 2006 is the revision petitioner. O.S.No.225 of 2006 has been filed by the respondents/plaintiffs, for the following reliefs:
(a) Directing the defendant to execute the sale deed in respect of the suit property in favour of the plaintiffs or his nominee after receiving the balance amount of Rs.2,00,000/- and have it registered and put the plaintiffs or their nominee in possession of the suit property.
(b) In case, their failure to do so, this Court may kindly execute the sale deed on behalf of the defendant and the put the plaintiffs in possession of the suit property.
(c) Alternatively, directing the defendant to pay plaintiffs a sum of Rs.7,56,750/- along with subsequent interest at the rate of 12% p.a. for the principal (advance) amount of Rs.6,25,000/- from the date of the suit till realisation.
3. Written statement has been filed by the revision petitioner/defendant in September 2006 and the suit is being contested. Pending suit, an application in I.A.No.2523 of 2007 has been filed by the revision petitioner/defendant under Order 26 Rule 10(A) of C.P.C. to pass an order, sending the suit agreement, which contains the disputed signatures with the petitioner’s admitted signature, to the hand writing expert of the Tamilnadu Forensic Science department at Chennai to get the expert opinion. This application was resisted by the respondents/plaintiffs by filing a counter. The trial court by order dated 11.12.2007 dismissed I.A.No.2523 of 2007 and aggrieved by the same, the defendant in the suit has filed the above Civil Revision petition under Article 227 of the Constitution of India.
4. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. I have also gone through the documents and judgment filed in support of their submissions.
5. The learned counsel for the petitioner submits that the trial court is wrong in dismissing I.A.No.2523 of 2007 on the ground that the revision petitioner did not produce the admitted signature and according to him, there is no legal impediment to pass an order directing the petitioner to produce some other documents with admitted signature. He contended that the trial court has dismissed the application on the ground of technicalities and if the forgery is proved, the revision petitioner/defendant can prosecute the respondents/ plaintiffs for giving false evidence before the court. The learned counsel further submits that the revision petitioner is now ready to produce documents containing his admitted signature and therefore, the matter may be remanded to the trial court for deciding the matter afresh after imposing some cost. The learned counsel relied on the judgment of the Hon’ble Supreme Court reported in 2008(4) L.W. 687 (Damara Venkata Murali Krishna Rao Vs Gurujupalli Sathvathamma) in support of his submissions.
6. Per contra, the learned counsel for the respondent submits that the trial court has rightly come to the conclusion that there is no merit in I.A.No.2523 of 2007 and therefore, the order of the trial court need not be interfered with by this court under Article 227 of the Constitution of India.
7. I have considered the rival submissions carefully with regard to facts and citation.
8. The case of the respondents/plaintiffs in O.S.No.225 of 2006 is that, the suit schedule property belongs to the revision petitioner/defendant who entered into a sale agreement on 16.7.2004 with the plaintiffs to sell the suit property for a valid consideration of Rs.8,25,000/-. On 16.7.2004 itself, the respondents/ plaintiffs paid a sum of Rs.6,25,000/- as advance and the sale deed is to be executed within four months from the date of the agreement. It is their further case that though they offered to pay the balance amount of Rs.2,00,000/- on several occasions and requested the revision petitioner/ defendant to execute the sale deed, she did not come forward to do so. Hence, the suit has been filed for the aforesaid reliefs, after sending a notice to the revision petitioner/ defendant on 2.11.2004.
9. The case of the revision petitioner/ defendant, as per the written statement is that she did not enter into any agreement of sale of the suit property on 16.7.2004 as contended by the respondents/plaintiffs. According to her, the sale agreement is a forged document, which is illegal and not valid in the eye of law. Pending suit, I.A.No.2523 of 2007 has been filed by the revision petitioner/defendant to send the suit agreement for verifying signature with an handwriting expert. It is stated in the affidavit filed in support of I.A.No.2523 of 2007 that as the signature found in the agreement is a forged one, it is to be compared with her admitted signature. Hence, it is absolutely necessary to send the signature found in the suit agreement with her admitted signature to the handwriting expert for comparison and opinion. This was resisted by the respondents/plaintiffs and it is stated by them in their counter that the trial has already commenced and the suit is posted for cross examination of the plaintiff’s witnesses. Therefore, there is no bonafide in the petition which is a highly belated one. It is further stated by them that, they have no objections for sending the document for comparing the signatures as it will prove their case beyond doubt.
10. The trial court after considering the matter in detail found that the revision petitioner/defendant produced only a xerox copy of a transfer certificate of her son Aravindan dated 26.5.2005 containing her signature as the parent of the boy and she has not produced any other document. The trial court observed that the suit agreement is dated 16.7.2004 and the transfer certificate dated 26.5.2005 is not a contemporaneous document. The trial court further found that the signature in the transfer certificate looks very faint and it is very unsuitable for comparison by a handwriting expert. In the absence of any other documents containing sufficient number of contemporaneous signatures of the revision petitioner, the trial court decided to dismiss the I.A.No.2523 of 2007.
11. I am of the considered view that the trial court has rightly dismissed I.A.No.2523 of 2007 for want of sufficient number of admitted signature contained in the contemporaneous documents. Though the learned counsel for the revision petitioner now submits that the revision petitioner is ready to produce a contemporaneous document containing her admitted signature, I am not inclined to accept the same and to remand the matter for fresh disposal.
12. First of all, it is for the respondents/ plaintiffs to prove their case once the revision petitioner/ defendant in the written statement filed by her denied the execution of sale agreement dated 16.7.2004. Further, written statement was filed in September 2006 and the application was filed in I.A.No.2523 of 2007 in October 2007, that too, after the trial has commenced and the matter has been posted for cross examination of the plaintiff’s witnesses. The judgment relied on by the learned counsel for the revision petitioner is not at all helpful to the case of the revision petitioner, as the same is distinguishable on facts.
15. Therefore, I do not find any merits in the above Civil Revision petition and the same is dismissed as devoid of merits. No costs. Consequently, M.P.No.1 of 2008 is also dismissed.
23.12.2008
Index : Yes/No
Internet: Yes/No
vaan
To
The Additional District Judge,
Fast Track Court No.IV, Coimbatore at Tiruppur.
S. RAJESWARAN, J.
vaan
Pre-Delivery Order in
C.R.P.(PD) No.62 of 2008
and M.P.1 of 2008
23.12.2008