RAM SINGH Vs. RAM BAHADUR SINGH

JUDGEMENT

(1.) This is an appeal from a decision of the learned Subordinate Judge in an action on a hand-note. The trial Court dismissed the suit, the learned Subordinate Judge in appeal gave the plaintiff a decree after considering the evidence of an expert. Two points are raised by Mr. Sivanandan Rai on behalf of the appellant. One is that the learned Subordinate Judge was acting contrary to law as regards the interrogatories which were administered to the handwriting expert, that is to say that he ordered cross-interrogatories to be served by the defendant, and he did not give the defendant an opportunity to cross-examine the expert.

(2.) One is loath to say that the provisions of the Civil Procedure Code as regards the issue of commissions and the administration of interrogatories (the latter being a part of the Civil P. C. relating to discovery) are not fully understood. What is quite clear in this case is this: that the handwriting expert not being called he was to be examined on commission. He was to be examined it appears by the plaintiff, whose witness he was, by written interrogatories. The Judge would be acting entirely without jurisdiction if he ordered the defendants to file cross-interrogatories in a case of this kind. If they had consented to do so that would have been another matter, but in this case, as they were unaware as to what the answers of the expert were to be, it would have been impossible to agree to this course. But the position in this case on that point is somewhat obscure; it seems to me that it is impossible to come to a conclusion on the matter.

(3.) In substance the decision was that the witness was to be examined on commission and the defendant could have done one of two things. He could have, if he had agreed, either filed written interrogatories or insisted upon an opportunity being given him to cross-examine the witness orally. The second point which was argued was that as this expert evidence had been admitted at the appellate stage, again the learned Judge's procedure was erroneous. The latest decision in this matter is the decision in the case of Parsotim Thakur V/s. Lal Mohar Thakur . It is necessary to bring the case under Order 41, Rule 27 and it is said by Mr. Sivanandan Rai that the case did not come under the provisions of that order.