{"id":232233,"date":"2007-04-19T00:00:00","date_gmt":"2007-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kalaiselvan-vs-velusamy-on-19-april-2007"},"modified":"2018-11-02T01:24:29","modified_gmt":"2018-11-01T19:54:29","slug":"kalaiselvan-vs-velusamy-on-19-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kalaiselvan-vs-velusamy-on-19-april-2007","title":{"rendered":"Kalaiselvan vs Velusamy on 19 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Kalaiselvan vs Velusamy on 19 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 19\/04\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE S.NAGAMUTHU\n\nCRP.(PD) (MD) No.983 of 2006\nand\nM.P (MD) No.1 of 2006\n\nKalaiselvan\t\t... Petitioner\n\nVs\n\n1. Velusamy\n2. Anadhi\t\t... Respondents\n\n\nPrayer\n\n\nThis Civil Revision Petition has been filed under Article 227 of the\nConstitution of India, against the fair and decreetal order dated 19.10.2006\nmade in I.A.No.279 of 2005 in A.S.No.72 of 2005 on the file of the District\nJudge, Karur.\n\t\n!For Petitioner\t\t...\tMr.K.Govindarajan\n\t\n^For Respondents\t... \tMr.N.R.Prabhakar for\n\t\t\t\tMr.T.M.Hariharan\n\n\t\t\t\n:O R D E R\n<\/pre>\n
\tThis Civil Revision Petition has been filed challenging the order dated
\n09.10.2006, made in I.A.No.279 of 2005, in A.S.No.72 of 2005, on the file of the
\nlearned District Judge, Karur.\n<\/p>\n
\t2. Brief facts of the case are as follows:-\n<\/p>\n
\tThe petitioner herein has filed the suit in O.S.No.73 of 2003, on the file
\nof the learned Subordinate Judge, Kulithalai, against the respondents herein for
\nspecific performance on the basis of an alleged written agreement dated
\n20.01.2003. The respondents herein have filed a detailed written statement,
\nwherein they have denied the execution of the sale agreement and alleged that
\nthe said document has been fraudulently created by committing forgery.
\nUltimately, on completing the trial, the learned Subordinate Judge, decreed the
\nsuit by an order dated 30.09.2004 in favour of the plaintiff. Challenging the
\nsaid decree, the first respondent herein has filed an appeal in A.S.No.72 of
\n2005, before the learned District Judge, Karur. During the pendency of the said
\nappeal, the first respondent who is the first defendant in the said suit has
\nfiled I.A.No.279 of 2005, praying for an appointment of Advocate Commissioner to
\ntake Ex.A.1, original sale agreement dated 20.01.2003, for comparison by the
\nHand Writing Expert namely, the Superintendent of Police (FD), Tamilnadu Finger
\nPrint Bureu, Mylapore, Chennai – 4. In support of the said application, the
\nfirst respondent has filed an affidavit wherein, he has stated that even while
\nthe suit was pending before the trial Court, a similar application in I.A.No.141
\nof 2004, was filed seeking to send the document for comparison and the same was
\ndismissed on the ground that it was filed after the commencement of the trial.
\nHe has further averred that he has intended to file a revision challenging the
\nsaid order of dismissal by obtaining a certified copy. But, before the same
\ncould be done, the trial was completed by the trial Court. He has further
\naverred that a stay petition filed by him before the lower Court was also
\ndismissed and judgment was pronounced in the suit. He has further averred that,
\nbecause of the above said reasons, he could not file any revision, challenging
\nthe order of the trial Court refusing to send the document for comparison and
\nhence, I.A.No.279 of 2005, has been filed at the appellate stage. He has further
\naverred that, the dismissal of the earlier application and non filing of any
\nrevision would not operate as res judicata to maintain the present petition.\n<\/p>\n
\t3. The petitioner herein has filed a detailed counter in I.A.No.279 of
\n2005, wherein he has stated that it is untenable to prefer the said application
\nat the stage of appeal, in view of the fact that there is no revision filed
\nchallenging the order in I.A.NO.141 of 2004, passed by the trial Court, refusing
\nto send the document for comparison. He has further stated that, the trial Court
\nitself has compared the admitted signature found in the other records and it has
\ncome to the right conclusion that the signature has been made only by the first
\ndefendant and therefore, it does not require any more comparison by an Expert.
\nHe has further stated that while exercising the power of appeal, even the
\nappellate Court can very well compare the disputed signature with the admitted
\nsignature, and come to a right conclusion. Therefore appointment of an Advocate
\nCommissioner is not at all sustainable.\n<\/p>\n
\t4. I have considered the rival contentions made by the learned counsel for
\nthe petitioner as well as the learned counsel for the respondents and also
\nperused the records. According to the plaint averments the disputed sale
\nagreement was executed by the first respondent\/first defendant on 20.01.2003.
\nThe first respondent\/first defendant in the written statement has denied the
\nexecution of the said document and he has made a specific plea that the said
\nsale agreement is a forged, fabricated, concocted and created one. It is also
\nthe admitted case that before the trial Court, the first respondent herein has
\nfiled I.A.No.141 of 2004, requesting the Court to send the disputed document
\nEx.A.1, to an Expert viz, The Superintendent of Police (FP), Tamilnadu Finger
\nPrint Bureu, Mylapore, Chennai – 4. Admittedly, the said application was
\ndismissed.\n<\/p>\n
\t5. The order of the learned Subordinate Judge dated 23.09.2004, made in
\nI.A.No.141 of 2004, has been produced for perusal of the Court. In the operative
\nportion of the said order, the learned Subordinate Judge has stated that the
\nprayer for comparison of the document in question by an Expert cannot be allowed
\nsince the Interlocutory Application has been filed at the belated stage that too
\nafter the evidence was closed. The learned Subordinate Judge has further stated
\nthat the disputed signature of the document can very well be compared by the
\nCourt itself with the admitted signature of the first defendant and therefore,
\nappointing an Advocate Commissioner to take the document to the Expert is
\nunnecessary. The learned Subordinate Judge has further stated that from the
\nevidence of the witnesses and the circumstances of the case, it can be safely
\nconcluded, whether the disputed signature was made by the first respondent or
\nnot. On these three grounds, the learned Subordinate Judge has dismissed the
\napplication. Of course, the first respondent should have preferred a revision
\nagainst the said order but the same has not been done. In the affidavit, filed
\nin support of I.A.No.279 of 2005, the first respondent has explained the reasons
\nfor not preferring such a revision challenging the order of the learned
\nSubordinate Judge. He has specifically stated that he has obtained the certified
\ncopy of the said order with an intention to file revision, but before he could
\nfile a revision, the trial was completed. There is some force in the statement
\nmade by the first respondent in his affidavit. A perusal of the order of the
\nlearned Subordinate Judge would show that the order in I.A.No.141 of 2004 was
\ndelivered on 23.09.2004 and the suit was decreed on 30.09.2004, i.e., within
\nseven days which includes two weekly holidays. Thus, the reasons stated in the
\naffidavit for failure to file revision, before the suit was decreed, is not only
\nreasonable but also acceptable.\n<\/p>\n
\t6. After the suit was decreed, we cannot expect the first respondent to
\nprefer any revision challenging the order of the learned Subordinate Judge made
\nin I.A.No.141 of 2004, as the same would be only a futile exercise as it would
\nbe infructuous. Therefore, he has raised this point as one of the grounds of
\nappeal.\n<\/p>\n
\t7. It could be seen from the records that without any further delay,
\nduring the pendency of the appeal, the I.A.No.279 of 2005, has been filed before
\nthe learned District Judge, Karur, with the same prayer asked for in the earlier
\napplication in I.A.No.141 of 2004. The contention of the learned counsel for the
\nrespondents is that the earlier order dismissing the prayer of the first
\nrespondent made in I.A.No.141 of 2004, operates as res judicate for making the
\npresent application in I.A.No.279 of 2005. The said plea  cannot be accepted for
\nthe following reasons:-\n<\/p>\n
\t(i) The learned counsel for the petitioner has relied on the judgment
\nreported in AIR 1960 Supreme Court 941 (V 47 C 167) wherein, the Hon’ble Supreme
\nCourt in paragraph Nos.7, 8, 21 and 22 has held as follows:-\n<\/p>\n
7. The principle of res judicata is based on the need of giving a finality to
\njudicial decision. What is says is that once a res is judicata, it shall not be
\nadjudged again. Primarily it applies as between past litigation and future
\nlitigation. When a matter – whether on a question of fact or a question of law –
\nhas been decided between two parties in one suit or proceeding and the decision
\nis final, either because no appeal was taken to a higher court or because the
\nappeal was dismissed, or no appeal lies, neither party will be allowed in a
\nfuture suit or proceeding between the same parties to canvass the matter again.
\nThis principle of res judicata is emboddied in relation to suits in S.11 of the
\nCode of Civil Procedure, but even where S.11 does not apply, the principle of
\nres judicata has been applied by courts for the purpose of achieving finality in
\nlitigation. The result of this is that the original court as well as any higher
\ncourt must in any future litigation proceed on the basis that the previous
\ndecision was correct.\n<\/p>\n
8. The principle of res judicata applies also as between two stages in the same
\nlitigation to this extent that a court, whether the trial court or a higher
\ncourt having at an earlier stage decided a matter in one way will not allow the
\nparties to re-agitate the matter again at a subsequent stage of the same
\nproceedings. Does this however mean that because at an earlier stage of the
\nlitigation a court has decided an interlocutory matter in one way and no appeal
\nhas been taken there from or no appeal did lie, a higher court cannot at a later
\nstage of the same litigation consider the matter again ?”\n<\/p>\n
\t8. In the same Judgment, the Hon’ble Suprement Court in paragraph Nos.21
\nand 22, has held as follows:-\n<\/p>\n
\t“21……Interlocutory orders which have the force of a decree must be
\ndistinguished from other interlocutory orders which are a step towards the
\ndecision of the dispute between parties by way of a decree or a final order.
\nMoheshur Singh’s Case, Forbes’ Case and Sheonath’s case dealt with interlocutory
\njudgments which did not terminate the proceedings and led up to a decree or
\nfinal order. Ram Kirpal Shukul’s Case, Bani Ram’s Case and Hook’s case deal with
\njudgments which though called interlocutory, had, in effect, terminated the
\nprevious proceedings. These cases are therefore of no assistance to the learned
\ncounsel for the respondent in his argument that the order of remand made by the
\nHigh Court not having been appealed from to this Court the correctness of that
\norder cannot be challenged now.\n<\/p>\n
\t22. In our opinion the order of remand was an interlocutory order which
\ndid not terminate the proceedings and so the correctness thereof can be
\nchallenged in an appeal from the final order……..”\n<\/p>\n
\t(ii) On the strength of the said Judgment, the learned counsel for the
\npetitioner would contend that since in I.A.No.141 of 2004, a similar request of
\nthe first respondent has been rejected by the trial Court, applying the
\nprinciple of res judicata, the lower Appellate Court ought to have dismissed the
\npresent I.A.No.279 of 2005. But, in the case on hand, the said principle of law
\ncannot be applied as the facts are entirely different. To apply the principle of
\nres judicata, first of all, the matter whether on a question of fact or in a
\nquestion of law should have been decided finally on an earlier occasion by the
\nsame Court or some other court in the same proceedings or in the same suit etc.<\/p>\n
\t9. Here in my view, the earlier order passed by the learned Subordinate
\nJudge is not on merits. As pointed out earlier, the said order has been passed
\non the three grounds namely, (1) the application has been filed belatedly; (2)
\nthe Court itself can compare the disputed signature with the admitted signature
\nand (3) the signature could be proved by means of oral evidence or other
\ncircumstances. The order of the learned Subordinate Judge on these three grounds
\ncannot be considered to be a final order on the question of fact so as to apply
\nthe rule of res judicata.\n<\/p>\n
\t10. Further, the order of the learned Subordinate Judge has not terminated
\nthe litigation. The order  dismissing the application to send the document for
\ncomparison by the learned Subordinate Judge also has not decided the question
\nwhether the disputed signature was made by the first respondent\/first defendant
\nor not. Therefore, the decision of the learned Subordinate Judge cannot be
\nconstrued to be a final order with reference to the facts involved in the
\ninstant case to apply the principle of res judicata. The learned counsel for the
\npetitioner would rely on the another Judgment reported in AIR 1964 Supreme Court
\n993 (V 51 C 128) (Arjun Singh Vs. Mohindra Kumar and others) the Hon’ble Supreme
\nCourt in paragraph No.13 has held as follows:-\n<\/p>\n
\t“13. It is needless to point out that interlocutory orders are of various
\nkinds; some like orders of stay, injunction or receiver are designed to preserve
\nthe status quo pending the litigation and to ensure that the parties might not
\nbe prejudiced by the normal delay which the proceedings before the court usually
\ntake. They do not, in that sense, decide in any manner the merits of the
\ncontroversy in issue in the suit and do not, of course, put an end to it even in
\npart. Such orders are certainly capable of being altered or varied by subsequent
\napplications for the same relief, though normally only on proof of new facts or
\nnew situations which subsequently emerge. As they do not impinge upon the legal
\nrights of parties to the litigation the principle of res judicata does not apply
\nto the findings on which these orders are based, though if applications were
\nmade for relief on the same basis after the same has once been disposed of the
\ncourt would be justified in rejecting the same as an abuse of the process of
\nCourt. There are other orders which are also interlocutory, but would fall into
\na different category. The difference from the ones just now referred to lies in
\nthe fact that they are not directed to maintaining the status quo, or to
\npreserve the property pending the final adjudication, but are designed to ensure
\nthe just, smooth, orderly and expeditious disposal of the suit. They are
\ninterlocutory in the sense that they do not decide any matter in issue arising
\nin the suit, nor put an end to the litigation.”\n<\/p>\n
\t11. I have gone through the above Judgment of the Hon’ble Superme Court.
\nInstead of supporting the case of the petitioner, it supports only the case of
\nthe respondent. The Hon’ble Supreme Court has categorised the orders into two
\ngrounds. Those orders in the Interlocutory Applications which do not finally
\ndecide any matter, any issue arising in the suit, or put an end to the
\nlitigation form the first category. With reference to those orders, falling
\nunder the said category there is no question of applying the principle of res
\njudicata. The second category is that, which finally decide the issue arising in
\nthe suit and put an end to the litigation. In the case on hand, the order made
\nby the learned Subordinate Judge has neither finally decided the issue involved
\nin the case nor terminated the suit. Therefore, this order would not fall within
\nthe second category of the order as observed by the Hon’ble Supreme Court, but
\nit would certainly fall within the first category of Interlocutory order against
\nwhich the rule of res judicata cannot be applied.\n<\/p>\n
\t12. The learned counsel for the respondents would rely on the Judgment
\nreported in AIR 1979 Supreme Court 1436 (Smt. Sukhrani v. Hari Shanker)<\/a> wherein
\nthe Hon’ble Supreme Court in paragraph No.5 has held as follows:-\n<\/p>\n
5. It is true that at an earlier stage of the suit, in the proceeding to set
\naside the award, the High Court recorded a finding that the plaintiff was not
\nentitled to seek reopening of the partition on the ground of unfairness when
\nthere was neither fraud nor misrepresentation. It is true that the plaintiff did
\nnot further pursue the matter at that stage by taking it in appeal to the
\nSupreme Court but preferred to proceed to the trial of his suit. It is also true
\nthat a decision given at an earlier stage of a suit will bind the parties at
\nlater stages of the same suit. But it is equally well settled that because a
\nmatter has been decided at an earlier stage by an interlocutory order and no
\nappeal has been taken therefrom or no appeal did lie, a higher Court is not
\nprecluded from considering the matter again at a later stage of the same
\nlitigation.”\n<\/p>\n
\t13. The above principle laid down by the Hon’ble Supreme Court also
\nsupports the case of the respondents that the rule of res judicata is not
\napplicable to the case on hand.\n<\/p>\n
\t14. At this juncture, it is to be rememberd that substantial justice
\nshould be rendered in any case and the same should not be allowed to fail only
\non a technical ground. In this case, when there is a serious dispute regarding
\nthe author of the signature found in the sale agreement, it is decirable that
\nthe disputed signature is examined by an expert so as to assist the Court to
\ncome to a right conclusion. Of course, the Court can very well compare the
\ndisputed signature with the admitted signature to come to a conclusion, but it
\ndoes mean that the Court should always compare the signature without getting the
\nassistance of an Expert for the said purpose. In this regard, the lower Court
\nhas rightly relied on the Judgment of this Court reported in 2003 (3) L.W 649
\n(Palaniammal v. Palanisamy) and has come to the correct conclusion that, it is
\nbetter to send the document for comparison by an Expert to decide whether the
\ndisputed signature was made by the first respondent or not.\n<\/p>\n
\t15. If it is the case of the petitioner that the I.A., has been filed only
\nwith a view to drag on the proceedings by the respondents, it can be certainly
\nconsidered. But in the case on hand, even during the pendency of the suit, as
\nwell as during the pendency of the appeal, the first respondent has made the
\nrequest to send the document for comparison, so as to establish that the
\ndisputed signature was not made by him. By getting the assistance of an Expert,
\nwhether the disputed signature and the admitted signature is tally with each
\nother or not, the case of the petitioner is no way going to be prejudiced. As a
\nmatter of fact, to render justice it is always desirable to have the assistance
\nof the Expert to offer his opinion, which would be certainly helpful for the
\nCourt. Thus, none of the contentions raised by the learned counsel for the
\npetitioner could be countenanced.\n<\/p>\n
\t16. For all these reasons, I do not find any irregularity or illegality in
\nthe order of the learned District Judge warranting interference by this Court
\nunder Article 227 of the Constitution of India. In the result, the order of the
\nlearned District Judge, Karur dated 09.10.2006, made in I.A.No.279 of 2005 in
\nA.S.No.72 of 2005, is hereby confirmed. The civil revision petition is
\ndismissed. No costs. Consequently, connected M.P is closed.\n<\/p>\n
Jbm<\/p>\n
To<\/p>\n
1. The Subordinate Judge,
\nKulithalai.\n<\/p>\n
2. The District Judge,
\nKarur.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Kalaiselvan vs Velusamy on 19 April, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-232233","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKalaiselvan vs Velusamy on 19 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kalaiselvan-vs-velusamy-on-19-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kalaiselvan vs Velusamy on 19 April, 2007 - 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