HYDRU Vs. GOVINDANKUTTY NAIR

JUDGEMENT

(1.) Where an expert has already furnished a report about the handwriting and fingerprint in dispute, can the court, without setting it aside, refer the matter to a second expert This is the question raised. While the petitioners contend that the court has no jurisdiction to make a second reference without wiping out the earlier proceedings, in view of O.26 R.10 of the Civil Procedure Code, the respondent would urge that a report is only a piece of evidence and that the Evidence Act does not restrict the choice to one only.

(2.) S.45 of the Evidence Act makes the opinion of an expert relevant when the court has to form an opinion as to the identity of hand writing; and under S.46 facts otherwise irrelevant become relevant if they support or rebut the expert's opinion. These two provisions only deal with relevancy, and not with the mode of making expert opinion evidence before the court. S.59 provides that all facts except the contents of documents may be proved by oral evidence, and S.60 requires oral evidence to be direct. The opinion of an expert is not an exception to the latter requirement, unless covered by other statutory provisions. Even as regards the contents of documents, they require proof under the provisions of S.61 to 66; and when the genuineness of the document itself is disputed, proof under S.67 is necessary. Normally therefore, the expert's opinion under S.45 should be given orally before court and a mere report or certificate from him cannot be evidence. Any witness can be examined on commission under the provisions of O.26 R.(1) to (8) of the CPC, and conceivably an expert can also be so examined. R.(1) and (4), however, use the words "may issue" and the preponderance of judicial opinion is that the court has a discretion in the matter. In the case of handwriting experts the trend of case law seems to be against issue of commission to examine an expert as witness.

(3.) Counsel for the petitioners referred to R.(9) and (10A) of O.26 to contend that the reference in this case amounted to issue of a commission under Rule (10A), and that the report of a hand writing expert can be treated as evidence without examining him in court. R.9 deals with commission for local inspection and does not directly apply. R.10(2) however provides that the commissioner's report and the evidence taken by him shall be treated as evidence in the suit even if he is not examined in court, and sub-r.(2) of R.(10A) extends the application of the above principle to reports of commissioners appointed for "scientific investigation". Assuming that the reference made to the hand writing expert in this case amounts to the issue of a commission for scientific investigation and that his report becomes evidence before the court as contended for, the further question still remains whether a court is powerless to issue a second commission without setting aside the report of a commissioner appointed earlier for the same purpose.