Madras High Court
Usha ... Revision vs John Jacoub Rajan on 11 July, 2023
C.R.P.(MD)No.2134 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 11.07.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.2134 of 2018
and
CMP(MD)No.9449 of 2018
Usha ... Revision Petitioner/Respondent/
Plaintiff
Vs.
John Jacoub Rajan ... Respondent/Petitioner / Defendant
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, to call for the records pertaining to the fair and decreetal order, in
I.A.No.518 of 2018, in O.S.No.212 of 2014, dated 04.08.2018, passed by
the Sub Court, Padmanabhapuram and to set aside the same.
For Petitioners : Mr.K.P.Narayanakumar
For Respondent : Mr.C.Sankar Prakash
ORDER
The instant Civil Revision Petition has been filed, against the
order, in I.A.No.518 of 2018, in O.S.No.212 of 2014, dated 04.08.2018,
passed by the Sub Court, Padmanabhapuram.
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C.R.P.(MD)No.2134 of 2018
2. The revision petitioner herein is the plaintiff and the
respondent herein is the defendant before the trial Court.
3. The few facts, which give rise to the instant revision petition,
are as follows:-
3.1. The petitioner being a plaintiff has filed the suit for recovery
of money in O.S.No.212 of 2014 on the basis of a pro-note, dated
01.06.2012. In which, the respondent has taken a categorical defence that
the plaintiff has forged the signature in the pro-note.
3.2. While so, the defendant has filed an application in I.A.No.
115 of 2018, with a prayer to send the disputed pro-note to compare with
his admitted signature, viz., his driving licence.
3.3. However, in the impugned order, dated 21.04.2018, though
the learned trial Judge has allowed the application and has given a different
direction to the petitioner to produce a settlement deed registered in
Document No.2862/2006, instead of his driving licence.
3.4. After the disposal of the above application, the defendant has
come up with an application in I.A.No.518 of 2018, on the ground that in
the settlement deed registered in Document No.2862/2006, which was
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C.R.P.(MD)No.2134 of 2018
ordered by this Court to send to the expert for comparison, does not contain
the signature of the defendant. Therefore, he filed an application to modify
that portion of the order so as to send the power of attorney, dated
07.02.2014, which was executed before the Thuckalay Sub Registrar Office
instead of settlement deed. The said application was objected by the
respondent on the ground of delay.
4. However, the trial Court vide impugned order, dated
04.08.2018, has allowed the application and has permitted the defendant to
send the original power of attorney, dated 07.02.2014, which was executed
before the Thuckalay Sub Registrar Office, to be compared with the
disputed pro-note, dated 01.06.2012.
5. Aggrieved with the order of the learned trial Judge, the
revision petitioner / plaintiff has come up with the instant application, and
the learned counsel for the revision petitioner would contend that the very
power of attorney was executed in favour of the defendant and that the
power of attorney has been executed only subsequent to the issue arising
between the plaintiff and the defendant. Therefore, the said power of
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C.R.P.(MD)No.2134 of 2018
attorney cannot be construed as a contemporary document. Hence, the
learned counsel would submit that the very order of the trial Judge is liable
to be interfered with.
6. In support of his contention, the learned counsel for the
revision petitioner relied upon a judgment of this Court reported in 2006-3-
CTC-39- (Central Bank of India V. Antony Hardware Mart, rep. by its
Proprietor).
7. Per contra, the learned counsel for the respondent would
submit that the order of the trial Court is justifiable, as the defendant's
admitted signature is not found in the place in the settlement deed.
Therefore, the order of the learned trial Judge is in order and prayed for the
dismissal of this revision petition.
8. I have given my anxious consideration to the either side
submission.
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C.R.P.(MD)No.2134 of 2018
9. It is an admitted fact that the order passed by the learned trial
Judge in I.A.No.115 of 2018, where the trial Court permitted the defendant
to send the disputed signature in the pro-note along with the admitted
signature in the settlement deed in Document No.2862/2006, to the hand
writing expert has not been challenged by the plaintiff herein. However, the
petitioner objecting the consequent application.
10. In this regard, the one and only submission raised by the
learned counsel for the petitioner is that the document, which is sought to
be modified, namely, power of attorney, dated 07.02.2014 is the
subsequent document, came into existence after the issue arose between the
plaintiff and the defendant.
11. But, this Court while perusing the plaint, finds that the suit
notice was issued only on 09.04.2014. But, the power of attorney was
executed on 07.02.2014, wherein the signature of the defendant is
available. Therefore, this Court is not able to find any apparent error in the
impugned order. Therefore, the argument of the learned counsel for the
petitioner that the power of attorney, dated 07.02.2014 is subsequent to the
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C.R.P.(MD)No.2134 of 2018
issue that arose between the parties and could not be sent as an admitted
document, to compare with the disputed pro-note, cannot be accepted at
all. Furthermore, considering the pro-note, dated 01.06.2012 and the power
of attorney dated 07.02.2014, this Court is of the considered opinion that
both the documents are contemporary documents. Therefore, nothing
wrong to compare the admitted signature found in the power of attorney
along with that of the disputed signature found in the said pro note.
12. At this juncture, the learned counsel for the petitioner would
invite the attention of this Court about the Ruling reported in 1999-III-
CTC-156 (Somasundaram V. Palani) and would submit that instead of
sending the document for expert opinion, the Court itself would very well
compare signature under the power vested with the Court, under Section
73 of the Indian Evidence Act. Though such power is vested with the
Court, the petitioner did not challenge the sending the document for
comparison of signature by the handwriting expert, but, only disputing the
substitution of power of attorney in the place of settlement deed.
Therefore, the argument of the petitioner referring Section 73 of the Indian
Evidence Act is futile exercise.
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C.R.P.(MD)No.2134 of 2018
13. Further, on careful consideration of the above Ruling, the
same arisen only when the statutory appeal was disposed of and not in an
application filed under Section 45 of the Indian Evidence Act. Therefore,
the facts and circumstances of the reported judgment are not applicable to
the case on hand.
14. Thus, in view of the reasons herein above stated, this Court is
not in a position to agree with the contention raised by the learned counsel
for the petitioner. Further the order passed by the learned trial Judge is
supported by the sound reasoning. Moreso, this Court could not find any
manifest error in the order passed by the trial Court. As a result, this Court
is not inclined to interfere with the order of the trial Judge.
15. It is made clear that the comparison of the disputed pro-note
should only be with the power deed, dated 07.02.2014. With the above
observation, the instant Civil Revision Petition is dismissed. There shall
be no order as to cost. Consequently, connected Miscellaneous Petition is
closed.
NCC : Yes/No 11.07.2023
Index :Yes/No
Ls
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C.R.P.(MD)No.2134 of 2018
C.KUMARAPPAN.,J.
Ls
To
1.The Sub Court,
Padmanabhapuram
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
C.R.P(MD)No.2134 of 2018
11.07.2023
https://www.mhc.tn.gov.in/judis
