TARA PRASANNA GUPTA Vs. JHAMAN RAM

JUDGEMENT

(1.) This is an application tor revision of an order made by the learned Munsif of Hazaribagh refusing to allow certain documents filed by the petitioner, purporting to bear sig-natures of one Siti Kanta Gupta, who is admittedly dead, to be sent to an expert for comparison with the alleged signature of Siti Kanta Gupta on a hukmanama filed by the plaintiff, which signature, according to the petitioner, is a forged one.

(2.) On an anxious consideration of the points raised before me, I am of the opinion that the order of the learned Munsif must be set aside and the rule made absolute.

(3.) Originally the suit was instituted against defendants 1 and 2 only and the other defendants were impleaded subsequently. In this suit, one of the question in dispute is as to whether the Hukmanama bears the genuine signature of Siti Kanta Gupta. The petitioner filed his written statement on the 2ist August, 1950. On the 27th July, 1951, he filed certain old documents with a petition praying to send them, along with the hukmanama in question, to an expert for comparison of the signatures of Siti Kanta Gupta on them. The petition was rejected although the suit was adjourned to the 30th August, 1951. On this date the petitioner again renewed his application and prayed that the documents may be sent to an expert in Calcutta for his opinion as to the genuineness of the signature on the hukmanama but the learned Munsif, by his order dated the 31st August, 1951, rejected the petition observing; that the application for examination of the expert had been made at a very late stage. It may be stated that on the application of the plaintiff the suit was again adjourned to the 21st November, 1951, for hearing. In my opinion, it was not open to the learned Munsif to reject the application, for Order 16, Rule 1, Code of Civil Procedure, provides that at any time after the suit is instituted, the parties may obtain, on application to the court, summonses to persons whose attendance is required either to give evidence or to produce documents. This provision gives no option to the court to refuse to summon a witness. Any party to a legal proceeding is entitled to make an application for issue of summons to his witness at any stage of the suit before the hearing. If the party making the application comes too. late, he takes the risk and the court is not bound to wait till the summons is served on the witness. If on the date fixed for hearing, the witness does not turn up, the person making the application cannot make any grievance. In this case, no application was actually made for issue of summons to the expert. But that stage would come only after the expert had given his opinion. Therefore, if the court is bound to summon an expert witness, it is equally bound to send the documents for the opinion of the expert; and if by the date fixed for hearing of the suit, the opinion of the ex-pert is not obtained and the expert does not turn up, either on summons or otherwise, the Court may proceed with the hearing of the suit without the opinion of the expert. In my view, therefore, the learned Munsif has acted illegally in the exercise of his jurisdiction! in that he has not followed the mandatory pro-? vision of Order 16, Rule 1, Code of Civil Procedure. A similar case came up for consideration before the Calcutta High Court in 'Aswini Kumar v. Anukul Chandra', AIR 1950 Cal 326 and Harries, C. J. held that a party is entitled as of right to a summons so long as the application is made after the institution of the suit and before it is decided. In that case also the trial court had rejected an application for issue of summons to an expert witness who was required to give his opinion as to the genuineness of a signature on a certain document. Therefore, in my view, the principle laid down in that case is fully applicable to the case before me.