BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 15.07.2021 Pronounced on : 07.10.2021 CORAM:

THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR C.R.P.(MD).No.601 of 2021 and C.M.P(MD)No.3344 of 2021 Kanagaraj : Petitioner/Respondent/Plaintiff Vs.

Ramamoorthy : Respondent/Petitioner/Defendant Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and executable order dated 05.01.2021, passed in the application in I.A.No.100 of 2020 in O.S.No.5 of 2019, on the file of the Additional District Court (Fast Track Court), Palani.

For Petitioner : Mr.J.Barathan For Respondent : Mr.D.Venkatesh

ORDER

The Civil Revision Petition is directed against the order passed in I.A.No.100/2020, in O.S.No. 5 of 2019, dated 05.01.2021, on the file of the Additional District Judge (Fast Track Court) Palani, in allowing the petition filed under Section 73 of Indian Evidence Act and under Order 26 Rules 9 and

10 of the Code of Civil Procedure.

2.The revision petitioner is the plaintiff and he filed the suit in O.S.No.5 of 2019, for recovery of money due on a promissory note. The respondent/defendant has filed the written statement and is contesting the suit.

3.The case of the plaintiff is that the defendant borrowed a sum of Rs.

30,00,000/- on 04.10.2016, for his family expenses and for constructing building from the plaintiff and executed a promissory note agreeing to repay the principal amount with interest at 12% per annum either to the plaintiff or to his order on demand, that despite the repeated requests, the defendant has failed to pay any amount towards principal or interest and that therefore, the plaintiff was constrained to file the above suit for recovery of Rs.38,10,000/- with interest at 12% per annum from the date of suit till payment and for costs.

4.The defence of the defendant is that the defendant has neither borrowed any amount nor executed any promissory note in favour of the plaintiff, that the plaintiff with the help of his close friends had created the promissory note and filed the suit, that the defendant's signature has been forged and the thumb impression found in the promissory note is not that of the defendant, that the plaintiff has no capacity to advance the loan amount of Rs. 30,00,000/-, that the plaintiff's brother's wife Kanna, who is running a Textile Shop in the building owned by the defendant has filed a suit against the defendant for permanent injunction and that the said Kanna had setup the plaintiff to file the above suit with evil intention and to cause hardship to the defendant.

5.Pending suit, the plaintiff has filed a petition in I.A.No.125 of 2019 under Order 26 Rule 9 C.P.C read with Section 45 of the Evidence Act for appointment of Advocate Commissioner to take the promissory note, dated 04.10.2016 to the hand writing expert, for comparing the disputed signature of the defendant on the promissory note with admitted signatures of the defendant and for getting expert opinion. The defendant has filed a counter statement, stating that he did not execute any promissory note, that the plaintiff has filled up the printed form of promissory note given by the defendant long ago to his land-lord and that the promissory note should be sent to expert, to findout the age of the ink.

6.At the enquiry, the learned Counsel for the plaintiff has made an endorsement that since the defendant has admitted the signature found in the suit promissory note, the said petition may be dismissed as withdrawn. The learned Additional District Judge, by recording the endorsement made by the learned Counsel for the plaintiff, has dismissed the said petition as withdrawn, vide order dated 11.02.2020.

7.It is evident from the records that the above suit was originally filed before the Principal District Court, Dindigul, that the plaintiff along with the plaint has filed a petition in I.A.No.10 of 2019, under Order 38 Rule 5 of C.P.C, for attachment of the petition mentioned properties therein before