(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the order dated 22.09.2023 in respect of the application filed by the Respondent herein in IA No.1/2020 in AS No.46/2018 passed by the II Additional District Judge at Salem.)

1. This civil revision petition has been filed, challenging the impugned order dated 22.09.2023 passed by the II Additional District Court, Salem, in I.A.No.1 of 2020 in A.S.No.46 of 2018.

2. In the aforesaid order, the application filed by the respondent / appellant, seeking to appoint an Advocate Commissioner to send the disputed signatures found in Exhibit A4 to an expert under Section 45 of the Indian Evidence Act to be compared with the admitted signatures of the petitioners in Exhibits A1 to A3 has been allowed.

3. The notice sent to the respondent/appellant in this civil revision petition has been duly served. The name of the respondent/appellant is also printed in the cause list today. Despite service of notice, no one has entered appearance on behalf of the respondent/appellant. Hence, the respondent/appellant is set ex parte by this Court.

4. The learned counsel for the petitioners would submit that without any reason, in the appellate stage, the Court below has allowed the application filed by the respondent/appellant, seeking for the appointment of an Advocate Commissioner to send the disputed signatures in Exhibit A4 to be compared with the admitted signatures in Exhibits A1 to A3, to a handwriting expert under Section 45 of the Indian Evidence Act.

5. The learned counsel for the petitioners also drew the attention of this Court to the impugned order in support of the aforesaid contention. The learned counsel for the petitioners would further submit that the respondent/appellant has also not satisfied the Court below as to why he did not file a similar application before the trial Court.

6. The following are the undisputed facts:

                   a) The suit has been filed by the respondent / appellant against the petitioners / defendants, seeking for the relief of specific performance of an agreement of sale;

                   b) During the pendency of the suit before the trial court, no application was filed by the respondent / appellant / plaintiff under Section 45 of the Indian Evidence Act, seeking to send the disputed documents namely Exhibits A1 to A4 to an expert for getting a report as per the provisions of Section 45 of the Indian Evidence Act but only before the appellate court, such an application was filed;

                   d) A specific plea was taken by the petitioners / defendants in the written statement, disputing the execution of Exhibit A4, the disputed document. But however, no application was filed by the respondent / appellant to send the disputed document to forensic expert at the earliest point of time, that is immediately after the filing of the written statement by the petitioners / defendants before the trail court.

7. In the affidavit filed in support of the application in I.A.No.1 of 2020, no reason has been given by the respondent / plaintiff as to why the respondent / plaintiff did not file an application, seeking for a similar relief when the suit was pending before the trial court.

8. The suit in O.S.No.31 of 2014 on the file of the Sub Court, Mettur, came to be dismissed on 26.03.2018, but I.A.No.1 of 2020 was filed by the respondent only before the appellate court in A.S.No.46 of 2018.

9. Not having given any reason as to why the respondent / plaintiff did not file an application under Section 45 of the Indian Evidence Act before the trial court, that too when the petitioners / defendants had taken a categorical stand in their written statement that they did not execute Exhibit A4, the question of entertaining an application filed by the respondent / plaintiff in the appellate stage for sending the disputed document, namely Exhibit A4, to a handwriting expert, does not arise and is not maintainable.

10. The suit was filed in the year 2012, but the application was filed only in the appellate stage, that too only in the year 2020. The appellate court in A.S.No.46 of 2018 ought not have entertained I.A.No.1 of 2020 filed by the respondent / plaintiff, as no reasons have been given by the respondent / plaintiff in the affidavit filed in support of the said application for not seeking the same relief before the trial court. By total non-application of mind, the impugned order has been passed by the II Additional District Court, Salem, in I.A.No.1 of 2020 in A.S.No.46 of 2018.

11. The respondent has also remained unrepresented in this civil revision petition.

12. Since the impugned order has been passed by total non-application of mind and without any reason having been given by the respondent / plaintiff for not seeking a similar relief before the trial court, necessarily, the impugned order has to be set aside by this court and this civil revision petition will have to be allowed.

13. For the foregoing reasons, the impugned order dated 22.09.2023 passed in I.A.No.1 of 2020 in A.S.No.46 of 2018 on the file of the II Additional District Court, Salem, is hereby set aside by this court, and this civil revision petition is allowed. The II Additional District Court, Salem, is directed to dispose of A.S.No.46 of 2018 within a period of four months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.