Under challenge is Ext.P5 order whereby the court below declined to send Ext.A2 series of documents for expert's opinion. 2. The suit was one for specific performance. The allegation was that the defendant had executed agreement for sale and he failed to honour the agreement and therefore suit was laid. The defendant denied execution of agreement and pointed out that he had no intention to sell the property to the plaintiff in the suit. The agreement on which reliance was placed for sent for expert's opinion and it was revealed that the signature found on Ext.A1 does not belong to the defendant.
3. The parties went to trial and evidence was adduced.
When the matter was taken up for hearing, petitioner sought to have the evidence re-opened and confronted the defendant with Ext.A2 series of letters and the defendant denied his handwriting in the letters. Thereafter the petitioner moved the court below for having the documents sent for expert's opinion. The court below, by the impugned order, declined to grant the relief.
4. Learned counsel appearing for the petitioner pointed out that the court below by the impugned order has precluded her from adducing evidence in her favour. It is contended that no party should be shut out from adducing evidence and her prayer for adducing evidence ought to have been allowed. It is further pointed out that Ext.A2 series of documents have not been subjected to proof and therefore it is necessary for the petitioner to prove the documents in accordance with law. It is the said order that was sought to be availed of which was declined. It is therefore contended that the order cannot stand.
5. Sri.Santhosh Poduval, learned counsel appearing for the respondent pointed out that right from the beginning i.e. at the time of filing of the written statement, the definite stand of the defendant was that he had not executed any agreement of sale and the document is a fabricated one. Expert's opinion was received with regard to the handwriting and it was found against the plaintiff. No evidence was adduced. When the matter was posted for hearing, the petitioner came forward with Ext.A2 series of documents and confronted the defendant with those documents. The defendant denied his handwriting in those documents. According to the learned counsel, there is no reason as to why the petitioner could not have been taken necessary steps earlier and had waited so long. Further, it is pointed out that the petitioner has not produced any admitted handwriting of the defendant to have it compared. What the petitioner has done is seeking to adduce evidence throughout in her favour which cannot be permitted. It is therefore contended that there is no merits in the petition and it is only to be dismissed.
6. After having heard the learned counsel for the petitioner, learned counsel appearing for the respondent and also after having gone through the records, there seems to be considerable force in the contention raised by the learned counsel for the respondent.
7. The issue is whether Ext.A1 agreement was executed by the defendant. The defendant when he files written statement specifically denied the execution of the agreement. It is seen that Ext.A1 document was subjected to examination by the expert and the expert's opinion was that the signature found on Ext.A1 could not be that of the defendant. Even after coming to know about the said fact, there was no attempt from the side of the petitioner to produce Ext.A2 series of documents when the defendant was confronted with Ext.A2 series of documents. He denied the handwriting in those letters. The court below was of the view that there is no admitted handwriting produced by the petitioner to have the handwriting compared and so plea cannot be allowed.
8. Learned counsel appearing for the petitioner pointed out that the court can compel the respondent to give his handwriting before the court. As rightly observed by the court below, that is not an advisable method as it would be enabling the plaintiff to collect evidence. Further sending document for expert's opinion is only to prove handwriting of a person and which can be proved by different method.
9. Apart from the belated production of documents, there is no admitted handwriting now available. There are no grounds to interfere with the order.
This petition is without merits and it is accordingly dismissed. But this will not preclude the petitioner from seeking to adduce further evidence in support of her case.
Sd/-
P.BHAVADASAN JUDGE smp