NATABAR BEHERA Vs. BATAKRISHNA DAS

JUDGEMENT

(1.) The plaintiff in Title Suit No. 292/77 pending in the Court of the Addl. Subordinate Judge, Cuttack is the petitioner in this revision. He filed the aforesaid suit for a declaration of title, confirmation of possession or in the alternative for recovery of possession in respect of the properties described in Schedule 'B' of the plaint. A prayer for permanent injunction and removal of encroachment from a portion of the suit properties was also made in the said suit. At one stage of the suit the plaintiff-petitioner relied on two rent receipts which were challenged by the defendant-opp. party. On the ground that the same were forged. The opp. party applied for sending the said documents to a handwriting expert for a comparison with his admitted signatures and for opinion in the matter. Both parties agreed that the documents should be sent by the Court to an expert outside the State without disclosing the name of the expert to the parties obviously to avoid any scope for malpractice. The Court sent the disputed signature along with the admitted signatures to one C.T. Bhanagay of Nagpur who in his report sent to the Court opined that the disputed signatures had been forged. The plaintiff-petitioner challenged the correctness and validity of the report on the ground that the mandatory provisions of O.26, R.18 of the Civil P.C. (hereinafter referred to as 'the Code') having not been complied with, the same could not be accepted in evidence without formal proof. The trial Court overruled the said application and accepted the report in evidence by the impugned order. This revision was placed before the Hon'ble Mr. Justice B.K. Behera who by his order dt. 2-1-1984 referred it to a larger Bench as it involves an important question of law.

(2.) The petitioner in this revision contended that examination of a handwriting or signatures does not involve any scientific investigation and, therefore, O.26 R.10-A of the Code is not attracted. It has been further argued that assuming for the sake of argument that it is so, the provisions of R.18 of the said Order having not been complied with, the report is nullity and the same could not be accepted in evidence under the provisions of R.10 of the said Order. Learned counsel appearing for the opp. party on the other hand strenuously contended that examination and comparison of handwritings by an expert is a scientific investigation within the meaning of the said Rule and in that view of the matter the opinion of the handwriting expert shall be governed by the procedure laid down in R.10 thereof which provides that the said report when submitted to the Court shall be evidence in the suit and shall form part of the record. It has also been contended by the learned counsel for the opp. party that the provisions of O.26, R.18 of the Code which requires that the Court shall direct the parties to the suit to appear before the Commissioner in person or by their agents or lawyers are not mandatory in nature so far as the scientific investigation by an expert is concerned and at any rate the parties having agreed to send the signatures to an expert outside the State without disclosing his identity to the parties it shall be deemed that they have waived the strict compliance of R.18 of the said Order. Thus the legal questions which arise for consideration are : (1) whether the report of a handwriting expert would come within the meaning of scientific investigation, thereby making R.10-A of the said Order applicable; (2) whether the report of the handwriting expert which does not comply the provisions contained in O.26, R.18 of the Code will still be evidence in the suit within the meaning of R.10 of the said order; (3) whether in the facts and circumstances of the case where the parties require that the Court should send the matter to an expert without disclosing his identity, it can still be said that noncompliance of R.18 would render the report a nullity.

(3.) Section 75 of the Code defines and limits the power of the Court to issue commission, the detail provisions of which has been set forth in O.26. The said Section was amended by Act 104 of 1976 and as a consequence of the said amendment new Rules 10-A to 10-C have been inserted in O.26 of the Code. In Cls. (e) to (g) of S.75 which were inserted by the aforesaid amendment, the power of the Court to issue commission has been widened. Cl. (e), so introduced empowers the Court to issue commission to hold a scientific, technical or expert investigation when it is needed for determination of any issue before the Court. R.10-A of O.26 provides that where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. Scientific examination means ascertainment by observation and experiment critically tested, systematised and brought under a set of principles. Comparison of a disputed signature with the admitted ones involves specialised skill based on study. It, therefore, comes within the scientific investigation and cannot be done by a layman without having the scientific knowledge and specialisation on the subject. The handwriting experts for the purposes of comparison of the handwritings take enlarged photographs of the disputed and the admitted writings and examine the same by application of recognised principles and by critical tests which in most cases cannot be conveniently conducted before the Court. Hence the genuineness of the signatures in the rent receipts having been disputed, the Court has rightly issued a commission for investigation by an expert.