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Madras High CourtCRP/4511/2017dismissed

B.A.Duraisamy v. A.S.Kandasamy

2017-12-14Honourable Mr Justice D. Krishnakumar10 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 14.12.2017

CORAM:

THE HONOURABLE MR. JUSTICE D. KRISHNAKUMAR CRP(PD)No. 4511 of 2017 and CMP.No.21289 of 2017 B.A.Duraisamy .. Petitioner Vs K.S.Kandasamy .. Respondent PRAYER: This Civil Revision Petition is filed under Article 227 of the Constitution of India, to set aside the order dated 27.07.2017 in I.A.No.266 of 2017 in I.A.No.872 of 2011 in O.S.No.32 of 2011 on the file of II Additional District Court, Erode.

For Petitioner :Mr.S.Kaithamalai Kumaran For Respondent :Mr.N.Manokaran

O R D E R

This Civil Revision Petition is filed to set aside the order dated 27.07.2017 in I.A.No.266 of 2017 in I.A.No.872 of 2011 in O.S.No.32 of 2011 on the file of II Additional District Court, Erode.

2. The learned counsel for the revision petitioner would submit that the respondent has filed the suit in O.S.No.32 of 2011 before the II Additional District Munsif, Erode for recovery of money of Rs.13,55,,000/- with future interest at the rate of 12% per annum. The petitioner has filed an I.A.No.872 of 2007 under Order 26 Rule 10 and 11 of the Code of Civil Procedure r/w.45 of the Evidence Act to send for the suit promissory note for expert opinion along with the admitted signature in a registered sale agreement dated 13.11.2017. However, the said application was closed on 29.04.2017, for the reason that the documents sought to be send for expert opinion are not available with the Court or with the Petitioner.

3. According to the learned counsel for the petitioner, the

respondent has filed an application in I.A.No.259 of 2012 to send for documents from the office of the Sub Registrar, Chennimalai. The said application was also dismissed. Again, the respondent has filed an I.A.No.99 of 2013 for summoning the Sub Registrar, Chennimalai and the same was also dismissed. Resultantly, the Civil Revision petition 3018 of 2013 has been filed before this Court and the CRP also dismissed by this Court. At this stage, the respondent has filed an I.A.No.288 of 2014 under Order XVI Rule 7 of the Code of Civil Procedure, to summon the Sub Registrar, Chennimalai to produce two sale deeds dated 16.12.2004. The said application was allowed and challenging the same, the revision petitioner has filed the Civil Revision Petition No.558 of 2015 before this Court. The said CRP was disposed on 24.02.2015.

Subsequently, for the reason cited in Para 2, I.A.No.872 of 2011 was closed on 29.04.2017. Aggrieved against the said order dated 29.04.2017, the revision petitioner filed an I.A.No.266 of 2017 to reopen the I.A.No.872 of 2011, the said Application was erroneously dismissed by the Court below. Therefore, the petitioner has filed the present Civil Revision Petition before this Court.

4. According to the learned counsel for the petitioner, the Court below has failed to consider the fact that the sale agreement sought to be send for by the plaintiff was not available with the defendant and therefore, the same could not be produced before the Court below. The Court below has rejected the said application without considering facts, by stating that the application was filed to drag on the proceedings and without giving any opportunity to the petitioners, the said application is erroneously dismissed by the Court below. Therefore, the said dismissal order is liable to be set aside.

5. Per contra, the learned counsel for the respondent would submit that the present application has been filed by the petitioner wantonly, with an intention to drag on the proceedings. The suit is of the year 2011, in the earlier occasion, the respondent has filed an application in I.A. No.288 of 2014 to summon the Sub Registrar, Chennimalai to produce two sale deeds, dated 06.12.2004 and the same was allowed by the Court below. Challenging against the order dated 06.11.2014 in I.A. No.288 of 2014 in I.A.No.872 of 2011 in O.S.No.32 of 2011 the revision

petitioner has filed CRP. PD No.558 of 2015. The said Civil Revision Petition was allowed with a direction to the Court below to send for the documents dated 06.12.2004 and the sale agreement dated 13.11.2007 registered as document No.2412 of 2007 for expert opinion of the hand writing expert and further the Court below was directed to dispose the said suit as expeditiously as possible. Though, the said order was passed in the year 2015, till now the said suit is pending. Therefore, the Civil Revision Petition is liable to be dismissed.

6.Considered the submissions made by the learned counsel for both the parties and perused the materials available on records.

7. The CRP.No.558 of 2015 has been filed by the petitioner before this Court, challenging the order passed in I.A.No.288 of 2014 dated 06.07.2014. During the course of the argument it was recorded by the Court, that the original documents already produced before the trial Court along with the sale agreement dated 13.11.2007 registered vide document No.2412 of 2007 sought to be send for expert opinion of the hand writing expert. Subsequently, I.A.No.872 of 2011 has been closed

on 29.04.2017 by the Court below, on account of memo filed by the petitioner stating that the documents are handed over to one Venkatachalam and hence, the petitioner is not in a position to produce the same before the Court. The present application has been filed to re-open the said application in I.A. No.872 of 2011 from the above facts. However, the petitioner has not chosen to file the Review Application against CRP. No.558 of 2015 before this Court in I.A. No.288 of 2015 before this Court. The petitioner being the defendant is more vigilant enough to take appropriate steps to review the order passed by this Court in the above said Civil Revision Petition. Without taking any steps to review the order passed in CRP. No.558 of 2015, the present application in I.A.No.872 of 2011 has been filed by the petitioner cannot be entertained and the same is liable to be dismissed.

8. In the light of the decision rendered by this Court in the case of Kannamma Vs. P.Sakunthala in CRP.PD.No.156 of 2009, wherein it is has held in paragraphs 9 and 10 as follows:

9. In Thiruvengadam Pillai Vs.

Navaneethammal and another, 2008 (4) SCC 530,

the issue before the Supreme Court was regarding the observation made by the First Appellate Court about the failure on the part of the Defendants to prove that her signature was forged. By concurring with the views of the High Court, in setting aside the findings of the trial Court, the Supreme Court observed thus :- "19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first Appellate Court reversed it by wrongly placing onus on the Defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the Defendants, it was for the Defendants to establish that the document was forged or concocted, is not sound proposition.

The first Appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the Defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it.

agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first Defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses."

10. In P.Sood & Co., (Manufacturing) represented by its Partner, Krishna Kumar Sood Vs. Peerchand Misrimalji Bhansali, Prop, Meena Metals, (2005 (3) CTC 12), Division Bench of this Court opined that when the defendant denied the Signature in a particular document which is very much relied on by the plaintiff, it is for the plaintiff to take steps to ascertain the genuineness of the disputed signature by sending the document to hand writing expert.

9. In view of the facts and circumstances of the case and in the light of the aforesaid judgement and decision cited supra, the Civil

Revision petition is dismissed. No order as to costs. Consequently, connected miscellaneous petition is closed. Since, the suit is of the year 2011, the trial Court is directed to dispose of the suit as expeditiously as possible in accordance with law, preferably within a period of six months from the date of receipt of a copy of this order. 14.12.2017 Index: Yes/ No Internet: Yes/No Speaking Order/Non Speaking Order RKP To The II Additional District Judge, Erode.

D. KRISHNAKUMAR J., RKP CRP(PD)No. 4511 of 2017 and CMP.No.21289 of 2017 14.12.2017