Under challenge is Ext.P5 order whereby the court below refused to send the documents involved in the suit for expert's opinion. 2. The suit namely, O.S.No.1000/2012 was one for declaration and other consequential relief pertaining to a Will and in the said suit, petitioner is the plaintiff. She relied on a Will of the year 1981. The defendant in the suit entered appearance and contended that there is a subsequent Will by which his mother bequeathed the plaint schedule property in his favour. The petitioner points out that in the light of the contention raised by the defendant, it was necessary to send the documents for expert's opinion. The petitioner preferred I.A.No.16820/2013 on an earlier occasion for the very same relief and when the matter was being heard, it was suggested by the court that the petitioner may deposit a sum of Rs.25,000/-. The petitioner points out that she did not have the requisite fund and therefore she instructed her counsel to not press the application and it was under that circumstance the earlier petition was dismissed as not pressed. Later, when she was able to manage the amount, she filed another petition as I.A.No.15705/2014 to send the documents to forensic lab. That petition was dismissed by Ext.P5 order which is assailed in this petition.
3. Learned counsel appearing for the petitioner points out that by dismissing the petition, the petitioner is precluded from adducing best evidence possible and that is contrary to law. The petitioner would also point out that dismissal of an earlier petition is not a ground to dismiss the current petition. The earlier petition happened to be dismissed as not pressed in the light of the fact that at that point of time when the court stated that the petitioner may have to incur Rs.25,000/-, the petitioner was not in a financial position to suffer the costs. Later she was able to manage the same and it was under that circumstance that she filed the second petition. The order, Ext.P5, is therefore claimed to be unsustainable.
4. The court below had noticed that on an earlier occasion, the petitioner had filed I.A.No.16820/2013 and when the matter was being heard on merits, the petitioner submitted that the petition is not pressed and therefore, the court dismissed that petition as not pressed. The court below had noticed that the court had not ordered any amount to be deposited before that application was dismissed as not pressed. It was further noticed by the court below that when the suit was put in the list on 06.08.2014, the petitioner moved the present application. It was also noticed that the petitioner had been given enough time to take pre trial steps. Finding that the application is filed at a belated stage that too when the case was posted for evidence, the court below dismissed the application.
5. On appreciation of the circumstance and material, the court below seems to be well justified in issuing the impugned order. If the petitioner was so desirous to have the documents send for expert's opinion, she had ample opportunity to do so before the suit was listed for trial. As rightly noticed by the court below, the attempt of the petitioner is to drag on the suit.
6. The expert's opinion is not the only way of proving or disproving a Will. The petitioner could adduce other evidence in support of her case.
There seems to be no justification in the contention taken by the petitioner. This Court finds no reason to interfere with the finding of the court below.
The Original Petition is dismissed.
Sd/-
P.BHAVADASAN JUDGE smp