High Court
Case Details
CRP 103/2013 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY
Legal Reasoning
Heard Mr. TJ Mahanta, learned counsel for the petitioner. None appears for the r espondent. The order, I propose to pass here-in-below, in my view, the presence of respondent/ opposite party is not essential. By this petition, the petitioner has challenged the order dated 27.11.2012 passe d by the learned Civil Judge, Golaghat, in Petition No.886/2012 (arising out of Money Suit No.2/2010), whereby the prayer of the petitioner for sending the Hand note in question to the Directorate of Forensic Science Laboratory for experts o pinion, was rejected. The brief facts leading to filing this petition, may be stated in brief, as foll ows: The petitioner as plaintiff, instituted a suit against the defendant/respondent for receovery of Rs.7.43 Lacs from the respondent, who had borrowed a sum of Rs. 5 Lacs from the petitioner by executing a hand-note on 22.11.07. Since the defen dant denied the execution of the said hand-note, the petitioner filed an applica tion before the trial Court for sending the disputed document to the hand writin g experts for forensic examination. However, the said prayer made on behalf of the petitioner was rejected by the trial Court by passing the impugned order. The relevant extract of the impugned order dated 27.11.2012, reads as follows: (cid:28)27.11.2012- & &.. Seen also another Petition No. 886/12 filed by the plaintiff praying to send the hand note to the Directorate of Forensic Laboratory Handwiring exper for examin ation and opinion. I have heard Ld. Advocate of both the sides. This case is at the stage of evide nce of defendant side. On the other hand the plaintiff side has failed to show sufficient reason on the prayer. Hence, at this stage, the prayer of the plainti ff is rejected. (cid:29)
Legal Reasoning
Learned counsel for the petitioner by referring to provision of Order 26 Rule 10 A of CPC submitted that any question arising in a suit involving any sc ientific investigation which cannot, in the opinion of the Court, be convenientl y conducted before the Court, the Court may, if it thinks it necessary or expedi ent in the interests of justice so to do, issue a commission to such person as i t thinks fit, directing him to inquire into such question and report thereon to the Court. Learned counsel relying upon a decision of the Hon’ble Supreme Court in Damara V enkata Murali Krishna Rao v. Gurujupalli Satvathamma reported in (2008) 12 SCC 1 70 submitted that at any stage of the proceedings, the Court can send a document for examination by experts, for the ends of justice. The relevant observations of the Apex Court in Damara Venkata (supra), is quoted below: (cid:28)7. The High Court dismissed the application primarily on the ground that intent ion of the appellant is to protract the litigation. It was noted that the very c onduct of the appellant in making an application to send Exts. B-1 to B-12 to ha ndwriting expert after the close of the evidence and when the case came up for a rgument indicated that the object was to protract the litigation. 8. Learned counsel for the appellant submitted that the High Court has proceeded on erroneous premises. The cross-examination was conducted on 24-7-2006 and the application in question was filed on 1-8-2006. The application was filed in ter ms of Order 19 Rule 1 of the Code of Civil Procedure, 1908 (in short (cid:28)CPC (cid:29)). The re is no appearance on behalf of the respondent. The conclusions of the High Cou rt, that the sole object in making the application was to protract the litigatio n, is not factually correct as the factual scenario goes to show. The earlier ci vil revision petition was disposed of on 29-3-2006. On 24-7-2006, son of the res pondent (CW 1) was examined after being summoned. According to the appellant, th e occasion for making the application arose only after such examination, on acco unt of the statements made denying the suggestions. The application was made imm ediately on 1-8-2006.
Decision
9. In view of the above, we set aside the impugned order of the High Court. The trial court shall pass necessary orders in terms of the prayer made by the appel lant. The appeal is allowed to the aforesaid extent without any order as to cost s. (cid:29) Mr. Mahanta, learned counsel also referred to a decision of Orissa High Court re ported in AIR 2001 ORISSA 185 (Bhagirati Sahu and others v. Akapati Bhaskar Patr a) , wherein it was observed that an application for sending disputed document t o the handwriting experts for scientific examination, is maintainable. The rele vant observations in Bhagirati Sahu (supra) reads as follows: (cid:28)In the case at hand the plaintiff opp. Party based his claim on the document (E xt.2) a deed of agreement for sale of the disputed house, which has been challen ged by the defendants-petitioners herein on the ground that it was a forged and fabricated document wherein the signature of defendant No. 1 has also been forge d and accordingly an application for sending the disputed signature for scientif ic examination was made. In the circumstances the learned trial Court ought to h ave stances the learned trial Court ought to have a7s a matter of prudence sent the disputed writing with the proved or admitted writing with regard to point of similarity or dissimilarity in the two sets of writing. The Court should not ha ve taken on to itself the task of comparing the handwriting for the proper asses sment of the value on the total evidence. Proof of handwriting is in nature of c omparison of the admitted and disputed signature or handwriting. Section 73 of t he evidence Act authorises the Court to compare such handwriting in order to com e to its own conclusion, ut it is always safe for the Court to take the aid of h andwriting expert who were equipped and have the expertise to scientifically com pare such handwriting with reasons and place their report which may induce the C ourt to form its own judgment by its own observation of those materials. In view of the settled position of law in the facts and circumstances of the case when the entire case is based on Ext. 2. the alleged deed of agreement to sale, the l earned trial court ought to have as a matter of prudence thought it appropriate to allow the application and send the document for handwriting expert. (cid:29) Mr. Mahanta further pointed out that the defendant categorically denied the sig nature of the document in his written statement as well as in his evidence, ther efore, examination of the disputed document by a forensic expert is a legal nece ssity. Considering the matter in its entirety, after perusal of the impugned order pass ed by the trial Court, it appears that the trial Court did not consider the afor esaid aspect of the matter in right perspective, while considering the applicati on submitted on behalf of the petitioner/plaintiff for sending the document to t he handwriting experts. Therefore, I propose to dispose of this petition with a direction to the trial Court to re-consider the application filed by the petitio ner, for sending the hand note in question to handwriting experts for scientific examination, taking note of the aforesaid observations and all other aspects of the matter, and to dispose of the same, in accordance with law. Accordingly, the impugned order dated 27.11.2012, insofar as it relates to rejec tion of the prayer for sending the document to handwriting experts, is hereby se t aside and the matter is remanded back to the learned trial Court to proceed to dispose of the matter, in accordance with law by taking note of the aforesaid o bservations and directions and also by giving adequate opportunities to both the parties of being heard. The revision petition is disposed of in above terms.