JITENDRA NATH SAMADDAR Vs. MD ISMAIL ANSARI

JUDGEMENT

(1.) THIS revisional application is directed against an order No. 93 dated 9/9/85 by and Additional Court of Munsif, howrah rejecting an application for appointment of a hand-writing expert. . The Court sought to usurp the function of an expert and intended to play the role of an expert. The opposition party in supporting the decision relies upon the decision in Eisseswar Poddar v. Nabadwip Ch. Poddar (AIR 1961 Cal 300) and particularly upon the observation in para 37 of the said decision. It cannot be laid down as a blanket proposition of law that the court in no circumstances can compare the disputed hand-writing with an admitted hand-writing. As a matter of fact section 73 Evidence act vests such power in court. But the court will exercise such power only in exceptional circumstances. The case cited by the petitioner is such an exceptional case. This court held that the court can play the role of an expert if neither party calls an expert or hand-writing expert is not available. In such a case court cannot but act under section 73 evidence Act. In our case a party has asked for the assistance of an expert. Since thereafter there have been decisions whereby the court's function as an expert has been discouraged. In the decision Smt. Sahta Trivedi v. Life Insurance Corporation of India (AIR. 198s Del 39) and in another decision of the Supreme Court (Delhi Administration v. Pali Rami AIR 1979 SC 14, 21, it has been held that the Judge should not compare the discharged hand-writing with the admitted hand-writing to reach a conclusion. In another case State of Gujrat v. Vindya Chandra Chhota Lal Pathi (AIR 1967 SC 778) the Supreme Court further held that the court cannot record a finding merely by comparison of the disputed writing with proven or admitted hand-writing. Comparison by court is permissible to appreciate the evidence tendered to prove the hand-writing. Therefore, the court below committed jurisdictional error in disallowing the petition for appointment of hand-writing expert on the ground that he would himself compare the signatures: In this view of the matter I allow the revisional application and set aside the impugned order. The prayer for appointment of a handwriting expert stands allowed. Application allowed.