whether court is having power to send the document to expert in dismissed suit? in another suit?
G.Nagarajeshwar Rao
(Querist) 02 July 2011
This query is : Resolved
Suit filed by the plaintiff on the mortgage deed. Preliminary decree passed on contesting. The final decree petition also filed and it is dismissed. While pending the final decree the plaintiff did not persued the matter, as the claim is compromised before elders and the plaintiff has passed a receipt for certain amount as full satisfaction of the suit claim. Accordingly the final decree petion is dismissed in default, at that stage the defendant has filed the said receipt in the court. The plaintiff has filed a restoration petiton with section 5 of limitation act petition. The sec. 5 of limitation act petition is also dismissed in default. Thereafter the plaintiff has filed a petition of restoration of that sec.5 of limitation act petition, it is also dismissed in the year 2007. The defendant had filed a criminal case with the police, the police charged for illegal detension of the defendant. The criminal case was tried by the Judicial First Class magistrate, and it was ended in Acquittal in the year 2008. [The plaintiff and the defenant both are cousins]. Thereafter the plaintiff has filed another civil case for damages for malicious prosecution. This case / suit is pending before the Court. The senior civil judge is without any application of either side, he called the record in the final decree petition which was already dismissed in the year 2007 itself, and he is put into writing on the docket in the damages suit, which is not the subject matter in that suit, and he ordered to send the receipt for expert opinion, and he ordered to pay the expert fee by the both parties equally @ Rs.1500/-
My question is that whether the court is having power to send the document to the expert, which was already dismissed in the year 2007 itself and there is no proceeding before him, with regarding to the said issue?
adv. rajeev ( rajoo )
(Expert) 03 July 2011
In this case judge cannot send the document for expert opinion, becuase it is not the document of that court, moreover it is not exhibited. Court cannot send it for expert opinion.
