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.