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Friday, March 29, 2013

Police deleted an accused believing ALIBI - but Magistrate took cognizance not based on protest complaint, but based on 161 statements whether it is correct = It is well settled that when the police submitted a final report of investigation of a case, the Magistrate may take cognizance or direct further investigation. This legal position has been time and again clarified by the Supreme Court in several pronouncements, viz., in the matter of Bains v. State[3], wherein it has been held as hereunder:- “1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Sec.190(1)(a) direct a police investigation under Section 156(3) ante; 2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps: “i. If he agrees with the police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceedings and dismiss the complaint. ii. He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section 200. iii. Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section 203. However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant, the magistrate cannot direct the police to straightway submit the charge sheet as was the view expressed in the matter of Abhinandan Jha [AIR 1968 SC 117] which was relied upon in the matter of Ram Naresh Prasad [(2009)11 SCC 299]. 8. Coming to the facts of the case on hand, the Sub Divisional Police Officer, accepted the alibi pleaded by the petitioner and deleted the name of the petitioner from the array of the accused after obtaining necessary permission from the Superintendent of Police, Kurnool. The learned Magistrate, on going through the charge sheet and the documents enclosed to it, more precisely, the 161 Cr.P.C statements of PWs. 1 to 4, proceeded to take cognizance of the offences u/s 147, 148, 452, 302, 307 r/w 149 IPC against A-1 to A-19 including the petitioner, who has been arrayed as A-3. Had the learned Magistrate treated the objections placed on record by the de facto complainant as complaint petition, necessarily the procedure contemplated under Section 200 Cr.P.C is required to be followed. The learned Magistrate has not treated the objections placed on record by the de factocomplainant as complaint petition. The main basis for taking cognizance of the offences is based on material gathered by the police during the course of investigation, more precisely the statements of witnesses recorded during the course of investigation. Much emphasis has been laid by the learned Magistrate on the 161 Cr.P.C statements of LWs.1 to 4. It is not the case of the petitioner that his name has not been spoken out by L.Ws 1 to 4. Therefore, the learned Magistrate is justified in taking cognizance of the case against the petitioner along with other accused. There is no flaw in the order impugned in the revision warranting interference of this Court in exercise of powers under Sections 397 and 401 of Cr.P.C. It is required to be noted that the petitioner was very much accessible to the Investigating Officer as he pleaded alibi and placed on record material to substantiate his plea. It is not the case of the prosecution that the petitioner avoided the investigating officer during the investigation of the case. In these circumstances, the learned Magistrate ought not to have issued N.B.W straightaway. Therefore, I am inclined to modify the warrant issued against the petitioner from Non Bailable to Bailable.




           *THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

+Criminal Revision Case No.401 of 2013


% 05-03-2013

# Injeti Venkata Rami Reddy

… Petitioner

                     Vs.

$  State of A.P., rep. by
    it’s Public Prosecutor, High Court of A.P.
… Respondent


! Counsel for the petitioner :   Sri T.Pradyumna Kumar Reddy
                                           

 Counsel for 2nd Respondent:  Additional Public Prosecutor


< Gist:



> Head Note:




 ? Cases referred:

(2007) 12 Supreme Court Cases 1
2012 (1) ALT (Crl.) 506 (SC)
AIR 1980 SC 1883










THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY

Criminal Revision Case No.401 of 2013
ORDER:

        This Criminal Revision Case is directed against the order dated 15-02-2013 passed in P.R.C.No.7 of 2013 whereby and whereunder, the learned Magistrate took cognizance of the offences punishable under Sections 147, 148, 452, 302 and 307 read with 149 IPC against A-1 to A-19 including the petitioner, who has been arrayed as A-3 and whose name has been deleted in the array of the accused while filing charge sheet in Crime No.21 of 2012 of Allagadda Town P.S.

2.     Facts, in brief, are:-
        Injeti Venkata Raghava Reddy @ Raghava Reddy and  Injeti  Krishna Reddy  were staunch followers of  Bhuma Nagi Reddy, Ex. Member of Parliament of Nandyal Parliamentary constituency.   
Both of them were trying to establish supremacy over the other in the village-Chintakunta.  
On 24-02-2012 at about 9.30 P.M., Injeti Krishna Reddy (hereinafter referred to as `D2’) was chitchatting with his wife-Govindamma  (hereinafter referred to as `D1’), his son-Injeti Mallikharjuna Reddy (hereinafter referred to as `D4’) and Pakir Nadipi Mabu @ Dubba (hereinafter referred to as `D3’) in his house.  

A-1 to A-19 formed into an unlawful assembly, armed with deadly weapons with the common object of doing away the life of D2-Krishna Reddy and his associates. 
They trespassed into the house of D2 by pushing main gate and attacked D1 to D4 and Lw-8-Sathugari Rama Subba Reddy. D1 to D4 succumbed to the injuries at the scene of offence.  
More precisely; A-2, A-9 and   A-6 dealt blows  on D1-Govindamma; A-3, A-4, A-8, A-10, A-14 and A-15 dealt blows  with deadly weapons  on D2-Krishna Reddy; A-1, A-6,   A-16 dealt blows with deadly weapons on D3-Pakkir Nadipi  Mabu @ Dubba; A-4, A-7, A-10, A-11, A-12, A-13, A-17, A-18 dealt blows  on D4-Mallikharjuna Reddy, and A-2, A-3 and A-19 dealt blows with deadly weapons  on Lw-8-Sathugari Rama Subba Reddy and caused  bleeding injuries  to him.   
Apart from the injured, LW-1-Shaik Chand Basha, LW-2-Ketireddy Jaya Rami Reddy, LW-3-Annem Sunith, LW-4-Khammam Naga Sulochana, LW-5-Suraboina Sujatha, LW-6-Boya Kondaiah and LW-7-Madiga Bala Hussaini witnessed the incident.  LW-1-Shaik Chand Basha presented a report on 25-02-2012 at about 0015 hours before the Station House Officer, Allagadda P.S., who registered a case in Crime No.21 of 2012 for the offences under Sections 147, 148, 452, 302, 307 read with 149 IPC and issued F.I.R. During the course of investigation, A-3-Injeti Venkatrami Reddy, A-5-Kristipadu Pedda Dasthagiri Reddy @ Dasthagiri Reddy, A-7-Kurduru Venkatrami Reddy pleaded alibi.  
The Sub Divisional Police Officer, Dhone examined the alibi pleaded by   A-3, A-5 and A-7 and accepted the alibi pleaded by A-3-Injeti Venkatrami Reddy while rejecting the alibi pleaded by A-5-Kristipadu Pedda Dasthagiri Reddy @ Dasthagiri Reddy and A-7-Kurduru Venkatrami Reddy.  
The Superintendent of Police, Kurnool issued orders to delete the name of A-3-Injeti Venkatrami Reddy from the array of the accused.  For better appreciation, I may refer the text of the proceedings issued by the Superintendent of Police, Kurnool in Rc.No.C1/11520/2012, Dated 8-8-2012 and it is thus:-
          As per the orders of Dy. Inspr.Genl. of Police, Kurnool Range, Kurnool in the reference  1st cited,  the Sub-Divisional Police Officer, Dhone .... took up investigation in Cr.No.21/2012 u/s 147, 148, 452, 302, 307 r/w 149 IPC of Allagadda Town P.S.
          The S.D.P.O Dhone in his enquiry revealed that according to the versions of witnesses examined in the enquiry  and documentary evidence  collected by him the Injeti Venkatrami  Reddy (A-3) in Cr.No.21/2012 u/s 147, 148, 452, 302, 307 r/w 149 IPC of Allagadda Town P.S …. was not at all present at P.Chintakunta village on 24-02-2012 at 10.45 PM, he was present at Chinnakomerla village of Mylavaram Mandal, YSR Kadapa Dist. to attend the marriage of Chinatryapalli Lakshmi who is the daughter of his cousin and he was not present  at scene of offence on 24-02-2012 at P.Chinthakunta village.  The witnesses who are very much known to A-3 categorically stated that A-3 was very much present  Chinnakomerla village of Mylavaram Mandal, YSR Kadapa District.
          In the above circumstances explained by the Sub-Divl. Police Officer, Dhone permission is accorded to delete the name of accused (A-3) Injeti Venkatrami Reddy aged 57 years s/o Injeti Venkata Subba Reddy of P.Chinthakunta village, Allagadda Mandal from the list of Accused in Cr.No.21/2012 u/s 147, 148, 452, 302, 307 r/w 149 IPC of Allagadda Town P.S”.

3.     Pursuant to the proceedings issued by the Superintendent of Police, Kurnool; the Sub-Divisional Police Officer, Dhone, deleted A-3- Injeti Venkatrami Reddy from the array of the accused and filed charge sheet in Crime No.21 of 2012 of Allagadda Town P.S. in the Court of the Judicial First Class Magistrate, Allagadda against A1, A2 and A-4 to A-19. 
The learned Magistrate issued notice to the de facto complainant with regard to deletion of A-3 Injeti Venkatrami Reddy from the array of the accused. 
The de facto complainant appeared before the Judicial First Class Magistrate, Allagadda and placed on record his objections to the charge sheet filed by the Sub Divisional Police Officer with regard to deletion of A-3- Injeti Venkatrami Reddy from the array of the accused.   
The learned Magistrate considered the charge sheet and the material documents enclosed to it as well as the objections placed on record by the de facto complainant and proceeded to take cognizance of the case against A-1 to A-19 including the petitioner whose name has been deleted from the array of the accused in the charge sheet, for the offences u/s 147, 148, 452, 302, 307 r/w 149 IPC, by order dated 15-02-2013. 
 For completion of narration of facts, the relevant portion of the order dated 15-02-2013 needs to be noted and it is thus:-
“In the circumstances of the case and in the light of the contents of the FIR, the statements of LWS.1 to 4 given to the Investigating Officer under Section 161(3) Cr.P.C prima facie shows there is sufficient material to proceed against the accused No.3 also.
On considering the totality of the facts and circumstances of the case, cognizance of the offence U/s.147,148,452,302,307 r/w 149 of I.P.C  is taken against  the accused Nos.1 to 19 whose names are arrayed  in the charge sheet including the accused No.3 Injeti Venkata Rami Reddy  whose name deleted.  Issue summons to accused No.11 as he is on bail.  The accused No.1, 2, 4 to 10, 12 to 19 are in Judicial Custody.  Hence, the case posted to 18-2-2013.  Issue non bailable warrant against  accused No.3.Injeti Venkata Rami Reddy. Call on 18-2-2013”.

The said order is assailed in this Criminal Revision Case by A-3-Injeti Venkata Rami Reddy.

4.     Heard Sri T.Pradyumna Kumar Reddy, learned counsel appearing for the petitioner and learned Additional Public Prosecutor appearing for the 2nd respondent-State.

5.     It is contended by the learned counsel appearing for the petitioner that taking cognizance of the case against the petitioner ignoring the report submitted by the Sub Divisional Police Officer on the alibi pleaded by the petitioner/A-3 cannot be sustained. He would further contend that had the learned Magistrate referred the report submitted by the S.D.P.O., on the plea of alibi taken by the petitioner/A-3, he would not have taken cognizance of the case against the petitioner/A-3. A contention has been advanced by the learned counsel that the objections placed on record by the de facto complainant amount to a complaint, in which case, the Magistrate has to follow the procedure contemplated under Section 200 Cr.P.C.  His next contention is that the learned Magistrate ought not to have issued N.B.W straightaway without exhausting the course of summon or bailable warrant. In a way, the contention of the learned counsel is that the power of issuing warrant being discretionary must be exercised judiciously with extreme care and caution.  The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants.   In support of his contentions, reliance has been placed on the judgment of Supreme Court in Inder Mohan Goswami v. State of Uttaranchal[1] and Vasanti Duvey v. State of Madhya Pradesh[2].  In Inder Mohan Goswami’s case            (1 supra), the Supreme Court issued certain guidelines as to when N.B.W should be issued.  Paragraphs (53) and (54) of the cited judgment needs to be noted and it is thus:-
“53.      Non bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired  result.  This could be when:
  • it is reasonable  to believe  that the person will not voluntarily appear in court; or
  • the police  authorities are unable to find the person  to serve him with a summon; or
  • it is considered  that the person  could harm someone  if not placed  into custody immediately.
54.     As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred.   The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants.  The court must very carefully examine whether   the criminal complaint or FIR has not been filed with an oblique motive”.

6.     In Vasanti Duvey’s case (2 supra), the Supreme Court held that on closure report from police pursuant to reference     u/s 156(3) Cr.P.C., the Magistrate cannot direct the police to file charge sheet.

7.     It is well settled that when the police submitted a final report of investigation of a case, the Magistrate may take cognizance or direct further investigation.  
This legal position has been time and again clarified by the Supreme Court in several pronouncements, viz., in the matter of Bains v. State[3], wherein it has been held as hereunder:-
“1.     When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Sec.190(1)(a) direct a police investigation under Section 156(3) ante;
2.       Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps:
“i.      If he agrees with the police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceedings and dismiss the complaint.
ii.      He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section 200.
iii.    Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such enquiry take action under Section 203.  However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant,  the magistrate cannot direct the police to straightway submit the charge sheet as was the view expressed  in the matter of Abhinandan Jha [AIR 1968 SC 117] which was relied upon in the matter of  Ram Naresh Prasad [(2009)11 SCC 299].

8.     Coming to the facts of the case on hand, the Sub Divisional Police Officer, accepted the alibi pleaded by the petitioner and deleted the name of the petitioner from the array of the accused after obtaining necessary permission from the Superintendent of Police, Kurnool.  
The learned Magistrate, on going through the charge sheet and the documents enclosed to it, more precisely,  the 161 Cr.P.C statements of PWs. 1 to 4, proceeded to take cognizance of the offences u/s 147, 148, 452, 302, 307 r/w 149 IPC against A-1 to A-19 including the petitioner, who has been arrayed as A-3. 
 Had the learned Magistrate treated the objections placed on record by the de facto complainant as complaint petition, necessarily the procedure contemplated under Section 200 Cr.P.C is required to be followed.  
The learned Magistrate has not treated the objections placed on record by the de factocomplainant as complaint petition.  
The main basis for taking cognizance of the offences is based on material gathered by the police during the course of investigation, more precisely the statements of witnesses recorded during the course of investigation. 
Much emphasis has been laid by the learned Magistrate on the 161 Cr.P.C statements of LWs.1 to 4.  
It is not the case of the petitioner that his name has not been spoken out by L.Ws 1 to 4. 
Therefore, the learned Magistrate is justified in taking cognizance of the case against the petitioner along with other accused.  
There is no flaw in the order impugned in the revision warranting interference of this Court in exercise of powers under Sections 397 and 401 of Cr.P.C.  
It is required to be noted that the petitioner was very much accessible to the Investigating Officer as he pleaded alibi and placed on record material to substantiate his plea.  
It is not the case of the prosecution that the petitioner avoided the investigating officer during the investigation of the case. 
In these circumstances, the learned Magistrate ought not to have issued N.B.W straightaway.  
Therefore, I am inclined to modify the warrant issued against the petitioner from Non Bailable to Bailable.

9.     Subject to the above observation, this Criminal Revision Case is dismissed at the stage of admission.
_____________________
B.SESHASAYANA REDDY, J
Dt.05-03-2013
RAR






[1] (2007) 12 Supreme Court Cases 1
[2] 2012(1) ALT (Crl.) 506 (SC)
[3] AIR 1980 SC 1883

Thursday, March 28, 2013

Or.26, rule 9 CPC Advocate-Commissioner to gather evidence not maintainable = it is the pleaded case of the petitioner that the respondents have occupied a part of the public street and raised constructions. Unless the petitioner has relevant evidence in his custody, he is not expected to file the suit. Being the plaintiff, the initial burden is on the petitioner to prove the plaint averments by adducing cogent oral and documentary evidence. Even though Order XXVI Rule 9 CPC envisages appointment of a Commissioner for elucidation of the matters in dispute, ordinarily, the Commissioner is appointed, where the Court is of the opinion that the available evidence is not enough to arrive at proper and correct conclusion for effectual adjudication of the disputes involved in the suit. Though the petitioner has filed his chief-examination affidavit in November, 2010, he has not even started adducing his evidence. Therefore, on the facts of this case, I am in agreement with the observation of the Court below that the petitioner has filed the application for appointment of a Commissioner to gather evidence instead of discharging his burden by adducing independent evidence.




The Hon’ble Sri Justice C.V. Nagarjuna Reddy


Civil Revision Petition No. 501 of 2013

Date: 21-02-2013

Between:

Papasani Sankara Reddy                                             .. Petitioner

And

Kandula Hanumantha Reddy & 6 others                      .. Respondents












Counsel for the petitioner         :  Sri V.V. Satish for
    Sri O. Manohar Reddy

Counsel for the respondents     :  ---


















The Court made the following:



ORDER:

This Civil Revision Petition arises out of order, dated             02-11-2012, in I.A. No.213 of 2012 in O.S. No.58 of 2007 on the file of the learned Junior Civil Judge, Guntakal. 

The petitioner filed the above mentioned suit for declaration of his right to use the main street abutting the plaint schedule property on the southern side without any let or hindrance, and for a mandatory injunction to direct the respondents/defendants to remove the respective houses constructed by them on the main street on the southern side of the plaint schedule property and not to cause any obstruction to him from using the main street. He has filed I.A. No.213 of 2012 under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short “CPC”) for appointment of an Advocate-Commissioner to inspect the suit schedule property, measure the same and demarcate the boundaries with the assistance of the Mandal Surveyor and to locate the extent of encroachment by the respondents on the southern side of the suit schedule property.  The respondents opposed the said application.  The Court below upon considering the respective pleas, dismissed the application.
The reasoning of the Court below in dismissing the application is mainly two fold, namely, that the application filed by the petitioner is belated; and that by seeking appointment of an Advocate-Commissioner, the petitioner is trying to gather evidence.
 As noted hereinabove, it is the pleaded case of the petitioner that the respondents have occupied a part of the public street and raised constructions.  Unless the petitioner has relevant evidence in his custody, he is not expected to file the suit.  Being the plaintiff, the initial burden is on the petitioner to prove the plaint averments by adducing cogent oral and documentary evidence. Even though Order XXVI Rule 9 CPC envisages appointment of a Commissioner for elucidation of the matters in dispute, ordinarily, the Commissioner is appointed, where the Court is of the opinion that the available evidence is not enough to arrive at proper and correct conclusion for effectual adjudication of the disputes involved in the suit.  Though the petitioner has filed his chief-examination affidavit in November, 2010, he has not even started adducing his evidence.  Therefore, on the facts of this case, I am in agreement with the observation of the Court below that the petitioner has filed the application for appointment of a Commissioner to gather evidence instead of discharging his burden by adducing independent evidence. 
For the above-mentioned reasons, I do not find any error, jurisdictional or otherwise, for interference with the order of the lower Court.  The Civil Revision Petition is, accordingly, dismissed.
As a sequel to dismissal of the revision petition, C.R.P.M.P. No.642 of 2013 filed by the petitioner for interim relief is disposed of as infructuous.
                                                              _____________________

                                                   C.V.NAGARJUNA REDDY, J

February 21, 2013.
Mgr/AM

No amendment is necessary - it can be lead in evidence = once the petitioner has asserted that she is the lawful owner of the said property, it is for the petitioner to establish her ownership over the said property whether by way of registered settlement deed or sale or gift or by succession, and by all means, she can establish her ownership. Merely because she has not stated in the plaint that she became owner by virtue of the release deed, it can not be said that the petitioner would be precluded from leading evidence. Therefore, I am of the opinion that the application filed by the petitioner seeking to amend the plaint stating that she became the owner by virtue of the registered release deed is immaterial as she is always free to lead evidence to establish her ownership over the suit schedule property.




THE HON’BLE SRI JUSTICE V. ESWARAIAH

C.R.P.No.155 of 2013

ORAL ORDER:
          This Revision is filed  by the petitioner aggrieved by the  order made in I.A.No.843 of 2012 in O.S.No.4163 of 2010 dated 21.11.2012 on the file of  III Junior Civil Judge, City Civil Court, Hyderabad, whereunder the application filed under Order VI Rule 7 of CPC to amend the plaint was dismissed.
           The petitioner is the plaintiff, who filed suit O.S.No.4163 of 2010 against the respondent-defendant for recovery of mesne profits based on the title over the suit schedule property.  After filing the suit, the petitioner filed the present I.A. seeking to amend the plaint by incorporating the following:
      “That the plaintiff became the owner of the suit schedule property by virtue of registered release deed vide document No.2246 of 1992 and she has been regularly paying property tax and electricity charges”.

After considering the matter, the trial Court dismissed the said I.A. by impugned order.  Questioning the same, the present C.R.P. is filed.

Having heard the learned counsel for the petitioner and perused the impugned order and other material available on record, I am of the view that 
once the petitioner has asserted that she is the lawful owner of the said property, it is for the petitioner to establish her ownership over the said property whether by way of registered settlement deed or sale or gift or by succession, and by all means, she can establish her ownership.  Merely because she has not stated in the plaint  that she became owner by virtue of the release deed, it can not be said that the petitioner would be precluded from leading evidence.

Therefore, I am of the opinion that the application filed by the petitioner seeking to amend the plaint stating that she became the owner by virtue of the registered release deed is immaterial as she is always free to lead evidence to establish her ownership over the suit schedule property.
Subject to the above observation, the revision is dismissed at the stage of admission.  As a sequel, the miscellaneous petitions, if any, stands dismissed.  There shall be no order as to costs.     
      

                                                           ________________
                                                            V. ESWARAIAH, J

Date: 24.1.2013
DA/VVR
                      

THE HON’BLE SRI JUSTICE V.ESWARAIAH















C.R.P.No.155 of 2013





24.1.2013





IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD


THE HON’BLE SRI JUSTICE V.ESWARAIAH

C.R.P.No.155 of 2013


Date: 24.1.2013

Between:

Smt.Ayesha Rizwana                                                .. Petitioner
And


Mushtaq Ahmed
.. Respondent















Tuesday, March 26, 2013

Or. 22 , rule 4 and or.1 rule 10 = the limitation to file an application to bring the legal representatives of a party to the suit, on record would commence from the date, on which the other party in the suit, receives the intimation through a memo filed under Rule 10-A of Order XXII C.P.C.


the limitation to file an application to bring the legal representatives of a party to the suit, on record would commence from the date, on which the other party in the suit, receives the intimation through a memo filed under Rule 10-A of Order XXII C.P.C.


THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

C.R.P. No.6363 of 2012

31.01.2013
     
N.Sankar Reddy.

N.Rami Reddy (died) and others.

Counsel for the petitioners: Sri K.G.Krishna Murthy

Counsel for respondents: Sri R.Dheeraj Singh

<GIST:

>HEAD NOTE:  

?Cases referred:

ORDER:
          Way back in the year 1998, the sole petitioner herein filed
O.S.No.1148 of 1998 in the Court of I Additional Junior Civil Judge, Chittoor
against K.Rami Reddy and Sivalinga Reddy, for the relief of declaration of title
and perpetual Injunction in respect of the suit schedule property viz., an
extent of about half acre of land in different survey numbers of Varathur
Village, G.D.Nellore Mandal, Chittoor District.
        During the pendency of the suit, Sivalinga Reddy died and his legal
representatives i.e., respondents 3 to 9 herein were brought on record, by
filing I.A.No.810 of 2004, which was ordered by the trial Court on 18.08.2004.
Rami Reddy is said to have died on 31.07.2001.  The petitioner was not aware of
that fact. However, he did make an effort to bring the legal representatives of
Rami Reddy on record.  Since there was delay, he filed I.A.No.341/2003 under
Section 5 of Limitation Act.  However, that was strongly opposed by the
respondents 3 to 9 and the same was dismissed by the trial Court through its
order, dated 02.07.2003.  Thereafter, respondents 3 to 9 filed I.A.No.523 of
2004 with a prayer to declare that the suit is abated on account of the death of
Rami Reddy, the 1st defendant in the suit.  That application was ordered on
09.09.2004.  A decree was passed to the effect that the suit stood dismissed as
abated.
          The petitioner on the one hand filed C.R.P.No.5158 of 2004 against
order. dated 09.09.2004 passed in I.A.No.523 of 2004,  and on the other hand
filed A.S.No.151 of 2005 in the Court of IX Additional District Judge, (Fast
Track Court), Chittoor against decree dated 09.09.2004, through which the suit
was dismissed.  C.R.P.No.5158 of 2004 was allowed on 14.08.2008 directing that
it shall be open to parties to agitate the question as to whether the death of
Rami Reddy has resulted in abatement of the suit.  A.S.No.151 of 2005 was
allowed on 28.12.2011, setting aside the decree, dated 09.09.2004.  A direction
was issued by the lower appellate Court, to the trial Court to take steps as
directed by this Court in CRP No.5158 of 2004.
          After the suit was restored, the petitioner filed I.A (C.F.).No.13916
of 2012 with a prayer to implead respondents 10 to 15 herein as defendants in
the suit.  According to him, the proposed respondents, who comprised of legal
representatives of the deceased-first defendant and certain others, are trying
to interfere with his possession over the suit schedule property.  At the
threshold itself, the trial Court dismissed the I.A., through its order, dated
06.11.2012.  Hence, this civil revision petition.
        Sri K.G.Krishnamurthy, learned Additional Advocate General appearing for
the petitioner submits that the order passed by the trial Court does not accord
with law.  He contends that once the decree passed by the trial Court on
09.09.2004 dismissing the suit as abated was set aside, the application filed
under Order I Rule 10 C.P.C. ought to have been entertained and decided on
merits. He further submits that the trial Court did not correctly appreciate the
purport of the order passed by this Court in C.R.P.No.5158 of 2004 and that of
the lower appellate Court in A.S.No.151 of 2005.
        Sri R.Dheeraj Singh, learned counsel for the respondents, on the other
hand, submits that even by this time, the petitioner did not take any steps to
bring the legal representatives of the deceased-1st respondent on record.  He
contends that since I.A.No.341 of 2003 filed under Section 5 of the Limitation
Act with a prayer to condone the delay in filing L.R. petition was dismissed way
back on 02.07.2003, the present application is not maintainable.
        The various developments, that have taken place in the suit for the past
about one decade, reveal that no attempt was made to get to the root of the
matter at any stage.  The superficial treatment given to the different
proceedings has given raise to the present state of affairs.
        The suit was originally instituted by one plaintiff i.e., petitioner
herein, against two defendants.  When the 2nd defendant died, petitioner took
prompt steps by filing I.A.No.810 of 2004 and the legal representatives were
brought on record as defendants 3 to 9.  The 1st defendant is said to have died
on 31.07.2001 long before I.A. No.810 of 2004 was filed.  Had the petitioner
been aware of the factum of the death of the first defendant, he would have
certainly taken steps to bring the legal representatives of the 1st defendant on
record.
        The record discloses that defendants 1 and 2 were represented by the same
counsel in the trial Court.  Rule 10-A of Order XXII C.P.C. places an obligation
on the counsel to inform the Court as well as the other party, whenever his
client dies, during the pendency of the proceedings.  This Court has taken view
in several matters that 
the limitation to file an application to bring the legal representatives of a party to the suit, on record would commence from the date, on which the other party in the suit, receives the intimation through a memo filed under Rule 10-A of Order XXII C.P.C.
That having not been done in this
case, the proposed respondents cannot resist the attempts made by the petitioner
to bring the legal representatives on record, or to implead them as defendants.
           It is at the instance of respondents 3 to 9 that the trial Court
declared that suit stood dismissed as abated.  A decree to that effect was
passed on 09.09.2004.  The petitioner was rightly advised to file revision as
well as an appeal.  The reason is that the decree came to be passed in the suit
as a consequence of the order in I.A.No.523 of 2004.  That order could have been
challenged only by filing revision. Since a decree has also been passed, remedy
of appeal must be availed, before lower appellate Court.  In both the
proceedings, the petitioner was successful.  The result is that the suit
remained on the file of trial Court.
           This Court made it amply clear in its order passed in the C.R.P. that
the question as to whether the death of the 1st defendant resulted in abatement
must be examined independently.  It is not a case, where the sole defendant in
the suit died.  Defendants 3 to 9 were very much on record.  Till now, no such
effort was made.  The presumption is that the suit remained unabated and that at
the most, abatement is vis-a-vis the 1st defendant.  Now that the efforts are
being made to bring the legal representatives of the first defendant on record,
there should not be any plausible objection.  In case, such of the respondents,
who are the legal representatives of the 1st defendant oppose the effort made by
the petitioner to implead them in the suit, a presumption has to be drawn to the
effect that they do not have any resistance to the offer and the decree, if any,
that may be passed in the suit shall bind them also.
           It may be true that there was some uncertainty in the matter as to
the status of the suit, in the light of the orders passed by this Court and the
lower appellate Court.  However, the trial Court ought to have numbered the I.A.
and heard the same on merits.  Instead, a cryptic order, which does not make any
sense, has been passed. Portions of the order are in fact derogatory.  It reads:
        "Rejected the Hon'ble High Court in C.F.No.5158/2004 given a direction
stating that I.A.423/04 in O.S.No.1148/98 has to be agitated by the parties at
the time of disposal of the suit the Hon'ble IX ADJ, CTR in A.S.No.151/05
relating to O.S.No.1148/1998 instructed the court to consider the suit on merits
as per order in Hon'ble High Court by giving the opportunity to the parties to
agitate the question involved in I.A.No.523/04 at the time of the disposal of
the suit.  Neither the High Court nor IX ADJ, CTR has directed the court to
conduct the . . . trial or to take further evidence on either side.  Therefore
petitioner/plaintiff is not entitled to file the present petition.  Therefore,
this petition is not maintainable and this petition is rejected." (Verbatim
reproduction)

Learned Presiding Officer ought to have bestowed proper attention while dealing
with the matter of this nature.  It is only gross negligence or total
indifference or lack of basics on the part of the officer, that bring about such
a hopelessly bad order.  It is hoped that the officer would not permit such
instances to recur.
        Therefore, the Civil Revision Petition is allowed and the order under
revision is set aside.  To avoid further complications in the matter, it is
directed that I.A(C.F).No.13916 of 2002 shall stand allowed.  In case, the
proposed parties intend to file any written statement, it shall be open to them
to do so within 30 days from today.  Additional issues, if necessary, shall be
framed and the suit shall be disposed of within six months from the date of
receipt of a copy of this order.
        The civil miscellaneous petition filed in this civil revision petition
shall also stand disposed of. There shall be no order as to costs.
_____________________  
L.NARASIMHA REDDY, J  
Date: 31.01.2013

while examining one witness, another witness going to be examined should not be there - is basic law- If a party to a suit intends to examine more witnesses than one, the basic requirement is that when one of the witnesses is being examined, others who are proposed to be examined as witnesses, are not present in the Court. If they are present, they would naturally become alert and fill the lacunae, that may be left in the evidence of the person, who is already examined as a witness. The Law does not permit this. However, exactly the same thing has happened in the instant case. When the cross-examination of D.W.2 was in progress, a person who is proposed to be examined as D.W.3, was present in the Court through out. The trial Court has taken correct view of the matter, when it held that the evidence of D.W.3 cannot be recorded at all and that the affidavit filed by him in lieu of chief-examination is liable to be eschewed from consideration. If at all anything, the trial Court has only enforced a fundamental principle and basic tenet of law of evidence. The petitioner has to blame himself for not ensuring that a witness, who is proposed to be examined by him, is not in the Court, when the other witness is being cross-examined. Hence, the Civil Revision Petition is dismissed. There shall be no order as to costs. The Civil Miscellaneous Petitions filed in this civil revision petition shall also stand disposed of.




THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

Civil Revision Petition No.253 of 2013

08.02.2013
     
M.Venkataratnam Reddy.

P.L.Manogaran and others.

Counsel for the petitioner    : Sri Suresh Kumar Reddy Kalava

Counsel for respondent : ---

<GIST:

>HEAD NOTE:  

?Cases referred:

ORDER:
        The 1st respondent filed O.S.No.104 of 2007 in the Court of Senior Civil
Judge, Puttur against the petitioner and respondents 2 to 7 herein, for the
relief of perpetual injunction in respect of the suit schedule property. The
trial of the suit commenced.  The evidence on behalf of the 1st respondent was
concluded. The evidence on behalf of the defendants is in progress.  The cross-
examination of D.W.1 was also completed.      
        When D.W.2 was being cross-examined, a person who was sought to be  
examined as D.W.3 and filed affidavit in lieu of Chief-examination, remained in
the Court.  Taking that into account, the trial Court, through docket order,
dated 14.12.2012, eschewed the evidence in chief of D.W.3 and held that he shall
not be entitled to depose as a witness in that suit.  The same is challenged in
this revision.
        Heard Sri Suresh Kumar Reddy Kalava, leaned Counsel for the petitioner.
        The cross-examination of a witness has its own significance. Several
important aspects will be elicited from the witnesses and the strength or
weakness of the suit would depend upon the extent, to which the information is
elicited in the cross-examination. For all practical purposes, the chief-
examination has been reduced to an empty formality with the creation of facility
of filing of affidavits in lieu of chief examination.
        If a party to a suit intends to examine more witnesses than one, the basic requirement is that when one of the witnesses is being examined, others who are proposed to be examined as witnesses, are not present in the Court. If they are present, they would naturally become alert and fill the lacunae, that may be left in the evidence of the person, who is already examined as a witness.  The Law does not permit this.
However, exactly the same thing has happened in the
instant case. 
When the cross-examination of D.W.2 was in progress, a person who 
is proposed to be examined as D.W.3, was present in the Court through out.  
The
trial Court has taken correct view of the matter, when it held that the evidence
of D.W.3 cannot be recorded at all and that the affidavit filed by him in lieu
of chief-examination is liable to be eschewed from consideration.   
 If at all
anything, the trial Court has only enforced a fundamental principle and basic
tenet of law of evidence.  
The petitioner has to blame himself for not ensuring
that a witness, who is proposed to be examined by him, is not in the Court, when
the other witness is being cross-examined.
Hence, the Civil Revision Petition is dismissed. There shall be no order as to
costs.
        The Civil Miscellaneous Petitions filed in this civil revision petition
shall also stand disposed of.

        _____________________  
L. NARASIMHA REDDY, J  
February 8, 2013.

Monday, March 25, 2013

the second expert for his opinion, even without setting aside the earlier report or opinion. = The expert opinion cannot be and should not be considered as gospel truth. Error is human. However high one person may be, it does not mean that he cannot commit any mistake. The evidence has to be appreciated without any prejudice. The Courts should not be influenced by the reputation, name and fame or influence of a witness. As far as the Courts are concerned, a witness is a witness. His evidence has to be considered on the touch stone of probabilities and circumstances and when the evidence is put to critical examination with rational outlook it may reveal whether such witness is a reliable witness or not. Then the Court would form an opinion whether to accept such evidence in toto or to reject the same or to accept it in part and reject the same in part. Therefore, in cases where the Court is of the opinion that the report of the expert is not satisfactory, where the expert has not followed the required procedure, where the findings of the expert appears to be prima facie incorrect, where there is an error on the face of the record, where it appears that the commissioner or expert had acted in a partisan manner and where the deficiency in the report cannot be completed by the same Commissioner or expert or where the Court feels that referring the matter to second Commissioner would be useful for better appreciation of evidence and for reaching just conclusions, the Court may refer the matter to second commissioner or to the second expert for his opinion, even without setting aside the earlier report or opinion. Since there appears to be some truth in the allegation that the respondent had changed his style of signature from time to time and expert had not compared all the specimen signatures sent to him and in view of the variation between S- 10 and S-11 and since Exs.C1 to C4 and Exs.X1 to X4 appear to have been obtained subsequently it may be just and reasonable to direct the second expert to examine these signatures and compare the same with the disputed signatures and such course would result in a valid and genuine exercise.




THE HON'BLE SRI JUSTICE P.S. NARAYANA AND THE HON'BLE SRI JUSTICE B. CHANDRA              
Civil Revision Petition No. 5407 of 2008

10-07-2009

M. Ramesh Babu, S/o M. Sreeramulu,
aged 39 years, Hindu, R/o 7-142,
Raghavaiah St., Madanapalle, Chittoor District.

M. Sreedhar, S/o Mulbagal Muniraja,
aged 45 years, Hindu, Occ: Self Employment,
R/o 14-410, Madanapalle.

Counsel for petitioner :  Sri Gopala Krishna

Counsel for respondent: Sri Subhash rep. Sri K. Suresh Kumar Reddy

:Order:  (per Hon'ble Sri Justice B. Chandra Kumar)

        This revision arises out of the order passed in I.A. No.842 of 2008 in
O.S. No. 149 of 2002, dated 16.09.2008, by the learned Senior Civil Judge,
Madanapalli, Chittoor District.
2.      The petitioner herein is the petitioner in I.A. No. 842 of 2008 and the
plaintiff in the main suit.  The respondent herein is the respondent in I.A. No.
842 of 2008 and the defendant in the main suit.  The parties will be referred as
they are arrayed in the lower Court for the sake of convenience.
3.      The brief facts necessary for disposal of this revision are as follows.
The petitioner had filed the suit in O.S. No. 149 of 2002 on the file of the
Senior Civil Judge, Madanapalle (hereinafter referred to as 'lower Court'),
against the respondent for recovery of Rs.1,63,400/- basing on a pronote, said
to have been executed by the respondent on 31.12.1999.  The petitioner's case is
that the respondent borrowed Rs.95,000/- from him and executed a pronote on
31.12.1999, marked as Ex.A1, in the presence of attestors, namely Jagadishwar
and Rajendra Prasad and subsequently failed to pay the amount.  The main
contention of the respondent is that he had not borrowed the amount from the
petitioner and that the said promissory note is a rank forgery.
4.      On behalf of the petitioner, the petitioner himself had been examined as
PW.1 and one of the attestors of Ex.A1 had been examined as PW.2.  At the
instance of the respondent, Ex.A1 pronote was sent to Pt. Ashok Kashyap, the
handwriting expert, who in his report Ex.C5 opined that the disputed signature
marked in Ex.A1 is a forged one.  Then the respondent had been examined as DW.1
and the handwriting expert
Pt. Ashok Kashyap had been examined as DW.2 and certain documents had been    
marked.
5.      Then the petitioner filed I.A. No.842 of 2008, under Order XXVI Rule 10-A
CPC, seeking a direction to send the suit promissory note Ex.A1 to any
Government handwriting expert for comparison of the disputed signatures in Ex.A1
with that of the admitted signatures of the respondent available in the
documents marked as Exs.C1 to C4 and Exs.X1 to X4.      The main contention of
the petitioner is that the respondent is in the habit of signing in different
styles in each document with different spelling and the same had been admitted
by the handwriting expert and that certain documents containing the signatures
of the respondent had been marked on behalf of the petitioner as Exs.C1 to C4
and Ex.X1 to X4 which are available in the Court file, and that the specimen
signatures S-1 to S-9 are not similar and that DW.2, the handwriting expert, had
not properly compared the disputed signatures with that of the admitted
signatures of the respondent.  The main contention of the respondent is that
Ex.A1 was already sent to the handwriting expert, who had given his opinion and
that merely because the opinion of the handwriting expert is against to the wish
of the petitioner, the opinion of the second expert cannot be taken, more over
when the petitioner had been given an opportunity to cross-examine the
handwriting expert at length and nothing had been elicited from his evidence.
It is also the case of the respondent that the petitioner cannot seek the
opinion of the second expert and such a course is not permissible in law.
6.      The learned Senior Civil Judge observed that the pronote Ex.A1 had been
already sent to the handwriting expert, who is a popular and renowned
handwriting expert and that the said expert had given sound reasoning for the
conclusions arrived at by him and that the said report is not set aside by the
Court.  The learned Judge also further observed that the settled legal position
is that the opinion of the second expert can be sought for only when there are
grave irregularities in the opinion of the first expert or when the Court comes
to a conclusion that the opinion of the expert is biased and that in the absence
of any such allegations, the opinion of the second expert cannot be sought for.
It was also observed that the petition was filed belatedly after the evidence of
both sides almost completed and that the petition had been thought of only to
procrastinate the proceedings.
7.      In Kushal Rao v. Shyam Rao1, and in R. Bhaskar Reddy and another v. Chinni
@ Chengal Reddy and others2, it was held that an appointment of second
commissioner for the same purpose without rejecting the report of the first
commissioner and without recording reasons for so rejecting cannot be sustained,
and in Korvi Rosaiah v. Mitta Srinivasa Reddy3, it was held that sending a
document to an expert for comparing the admitted signatures with the disputed
signatures for the second time is permissible.  Having regard to the above
contradictory views, one of us Hon'ble Sri Justice P.S. Narayana had opined that
the said controversy should be resolved by any appropriate Division Bench in
accordance with law.  Accordingly, the matter was placed before the Hon'ble the
Chief Justice and the Hon'ble the Chief Justice constituted this Bench for
disposal of the matter, and, thus, this matter came up before us.
8.      Sri Gopala Krishna, learned counsel for the petitioner, submitted that
under Sub-Rule (3) of Rule 10 of Order XXVI CPC, if the Court is dissatisfied
with the proceedings of the Commissioner, it may direct such further inquiry to
be made as it shall think fit and that the opinion of the second expert may be
obtained.  It is further submitted that there is lot of difference in the
procedure being followed by a Commissioner appointed under Rule 9 of Order XXVI
and under Rule 10-A of Order XXVI CPC.  It is his submission that when a
commissioner is appointed under Rule 9 of Order XXVI, the Advocate Commissioner
would give notice to both the parties and that the parties and/or their counsel
would be present and furnish work memos to the Advocate Commissioner.  Thus, the
Advocate Commissioner, while executing the warrant under Rule 9 of Order XXVI
CPC, would conduct his proceedings in the presence of both the parties and their
advocates, whereas when the opinion of an expert is sought he would conduct his
proceedings and give his opinion in the absence of the parties and their
counsel.  Thus neither the parties nor their counsel would have an opportunity
to participate in the proceedings of the expert.  It is also submitted that as
per Section 46 of the Indian Evidence Act relevancy of facts bearing upon the
opinions of experts, but there is no such reference to the relevancy of facts in
Rule 9 of Order XXVI CPC.  It is also argued that the report of the Commissioner
is taken as evidence in the suit and shall form part of the record and the Court
or with the permission of the Court any of the parties to the suit may examine
the Commissioner in the Court, but as far as the opinion of the expert is
concerned it is one of the relevant facts under Section 45 of the Indian
Evidence Act.  Thus, his main submission is that Section 45 of the Indian
Evidence Act is the substantive law, whereas Order XXVI Rule 9 CPC is procedural
law.  Thus there is much difference between Order XXVI Rule 9 and Order XXVI
Rule 10-A read with Section 45 of the Indian Evidence Act.  It is his main
submission that if any other material other than previously sent is available
the opinion of the second expert can be obtained.  In support of his contentions
Sri Gopal Krishna had placed reliance on a decision of the Kerala High Court
reported in Hydru v. Govindankutty4.  It is also his submission that a report of
the expert has to be proved under the provisions of Sections 61 to 66 of the
Indian Evidence Act.
9.      Sri Gopala Krishna further submitted that the expert marked exhibits S-1
to S-9 the specimen signatures and that S-10 and S-11 the admitted signatures on
Xerox copies and that the expert compared the disputed signatures with the
signatures available on the Xerox copies of
S-10 and S-11 and that when 10 admitted signatures were sent, no reason had been
assigned for not comparing the disputed signatures with all the signatures sent.
It is further submitted that the expert had selected admitted signatures in a
pick and choose manner.  It is also submitted that the admitted signatures i.e.,
Exs.C1 to C4 and X1 to X4 were not available when S-1 to S-11 were sent to the
expert.  His further submission is that since Exs.C1 to C4 and X1 to X4 admitted
signatures had been signed by the respondent during the Court proceedings in the
open Court, such signatures are proved to be admitted signatures which have to
be sent to the expert under Section 73 of the Indian Evidence Act.  Reliance was
also placed on the recent decision of this Court in Korvi Rosaiah's case (3
supra), wherein the learned Judge of this Court opined that when there is an
allegation that the disputed signatures were deliberately signed in a different
fashion the admitted signatures taken before arising of the dispute between the
parties can be sent to another expert for his opinion.  Thus the main contention
of Sri Gopala Krishna is that where the circumstances warrant in the interest of
justice the opinion of second expert can be obtained particularly when
additional material is available.
10.     It is his further submission that when the report of the expert itself is
a mere proceeding there is no need to express dissatisfaction.  Referring to
Sub-Rule (3) of Rule 10 and Sub-Rule (2) of Rule 12, the learned counsel submits
that in Sub-Rule (2) of Rule 12 the words 'proceedings' and 'report' both have
been used, whereas in Sub-Rule (3) of Rule 10 the word 'proceedings' alone has
been used and, therefore, the Court even without expressing its opinion about
the report if dissatisfied with the proceedings can direct further enquiry.  It
is also his submission that there should be some safeguard to the parties and
filing of objections is not applicable in case of expert opinion.  The learned
counsel also vehemently argued that for arriving at truth and for doing complete
justice, the opinion of the second expert must be obtained.  It is also his
submission that seeking of the opinion of the second expert is not for the
purpose of filling up of any gaps but to establish the truth and to rebut the
false contention of the respondent that the signature in Ex.A1 is forged one.
11.     Sri Subhash, Advocate, representing Sri K. Suresh Kumar Reddy, learned
counsel for the respondent, submitted that the decision in Korvi Rosaiah's case
(3 supra) cannot be treated as the law laid down by this Court, in view of the
earlier decisions of this Court reported in R. Bhaskar Reddy's case (2 supra)
and in Kushal Rao's case (1 supra).  His main submission is that the constant
judicial view is that the opinion of the second expert cannot be obtained once
the opinion of an expert had already been obtained.  It is also submitted that
in fact the trial in the lower Court is almost over and at that stage the
petitioner filed this petition to send Ex.A1 to the second expert and that all
the decisions dealing with Order XXVI Rule 9 CPC are applicable to the
scientific investigation i.e., expert opinion falling under Order XXVI Rule 10-A
and that if the claim of the petitioner is accepted then the parties would take
advantage of the same and seek the opinions.  It is further submitted that if
the petitioner is not satisfied with the report of the expert he should have
filed objections and requested the Court to reject the opinion of the expert.
His main submission is that without rejecting the earlier report of the expert,
the report of the second expert cannot be sought for.  The learned counsel had
relied on R. Bhaskar Reddy's case (2 supra) and also on Kushal Rao's case (1
supra) in support of his submission.  The counsel also submitted that the expert
was already cross-examined and after two years of the report of the expert now
the petition is filed for sending the document for the opinion of the second
expert.
12.     The point that arises for consideration is whether the opinion of second
expert can be sought for without setting aside the earlier report, if so under
what circumstances?
13.     It is not in dispute that Ex.A1 had been sent to the handwriting expert
and he had given his opinion marked as Ex.C5.  As seen from the contents of
Ex.C5 the handwriting expert marked the disputed signature of the respondent on
the promissory note as Ex.Q1 and the specimen signatures of the respondent as S-
1 to S-9 and his admitted signatures dated 01.09.1997 and 28.08.2000 as S-10 and
S-11 respectively on two separate share certificates.  Certain peculiar facts
have surfaced in the cross-examination of the expert.  The expert (DW.2)
admitted in his cross-examination as follows.
"It is true that there are five signatures on first sheet and five signatures in
the second sheet.  I have got marked the five signatures on the first sheet as
S-1 to S-5 and the first four signatures in the second sheet as S-6 to S-9.  I
have not marked the last signature following the S-9.  The voluntary of the 9
signatures are enough for comparison.  I did not mention the last signature in
my report for comparison sent by the Court.  I have not stored the photographs
in my computers.  I have only verified the signatures purported to have been
made by M. Sreedhar in the Xerox copies of the share deeds.  In the portion
marked as S-11 containing the signature of 'Sreedhar Mulabagala dated
28.08.2000' and he has signed as 'Shreedhar M.'  In the portion marked as S-10
he has signed as 'Sridhar M.'  As seen from S-10 and S-11 he is in the habit of
signing as 'Shreedhar M.' and also 'Sridhar M.'  It appears that the same person
is in the habit of writing signatures with two different spellings.  The letter
'S' in S-10 and S-11 is not identical, and also there is a variation in the word
'a' in S-10 and S-11.  However the witness adds that it is a natural variation.
It is true that there is difference in writing of the word 'r' in the last word
signature of Sreedhar in S-10 and S-11.  It is true that in S-1 to S-9 the
location of 'M' is at the beginning, whereas in S-10 and S-11 he had written at
the end.  The speed in S-1 to S-9 is slightly faster than S-10 and S-11 but it
could be deliberate."

14.     It may be relevant to refer to the evidence of DW1 Sreedhar.  DW.1 had
denied the suggestion that with a desire and deliberately he changed his style
of signatures not only to avoid the payment but also to mislead the Court.  Of
course he had also denied the suggestion that he managed the handwriting expert
Pt. Ashok Kashyap to give opinion in his favour.  When DW.1 had been examined on
22.02.2007, Exs.C1 to C4 had been marked.  Exs.C2 and C3 are the Photostat
copies of the certificates dated 14.07.2005 and Ex.C4 is the Photostat copy of
the report of the Directors dated 01.09.1997 containing the signatures of DW.1.
Exs.X1 to X4 seem to be the record of the Court bearing the signatures of the
respondent.  The admitted case of the respondent is that he is in the habit of
writing signatures in different spellings and there is different style of
signatures in admitted and specimen signatures.  Thus, it is clear that the
respondent had signed with different spellings with different speed on different
occasions.  The opinion of the expert that certain words such as 'a', 'd', 'r',
'i', and 's' in S-10 and S-11 as natural variation has to be carefully examined.
The Court has to depend upon the opinion of expert in many cases.  Of course,
the Court can form its own opinion and come to an independent conclusion, but at
the same time the opinion of an expert would have great impact in forming an
opinion by the Court.  In view of the different opinions expressed by various
courts and by the learned Judges of this Court it became necessary to examine
the whole issue in detail.
15.     The common opinion of the Courts appears to be that the evidence of
handwriting expert must be received with great caution.  In Bhargav K. Salunkhe
v. State of Maharashtra5, it was held that evidence of handwriting expert must
always be received with great caution.  In State of Maharashtra v. Sukhdeo
Singh6, the Supreme Court held that science of identification of handwriting is
an imperfect and frail one, and the same needs corroboration.  It was further
held that although the section specifically empowers the Court to compare the
disputed writings with the specimen/admitted writings shown to be genuine,
prudence demands that the Court should be extremely slow in venturing an opinion
on the basis of mere comparison, more so, when the quality of evidence in
respect of specimen/admitted writings is not of high standard.
16.     Thus, the second legal opinion of an expert appears to be a weakest and
the least reliable evidence and it is not at all safe to base conviction upon
the opinion of handwriting expert alone.  Courts have refused to act upon the
evidence of expert unless it is corroborated by independent evidence.
17.     As early as in 1933, in a case reported in Diwan Singh v. Emperor7, it was
observed as follows.
".............In this connection it will be interesting to refer to a passage at
p.127 of Ryen of Criminal Evidence in India, which has been cited with approval
by a Division Bench of this Court presided over by the Hon'ble the Chief Justice
and Leslie-Jones, J., in Hari Singh v. Lachmi Devi (4), (at p.226 of 59 I.C.):
"It must be borne in mind that an expert witness, however, impartially he may
wish to be, is likely to be unconsciously prejudiced in favour of the side which
calls him.  The mere fact of opposition on the part of the other side is apt to
create a spirit of partisanship and rivalry, so that an expert witness is
unconsciously impelled to an expert witness is unconsciously impelled to support
the view taken by his own side.  Besides, it must be remembered that an expert
is often called by one side simply and solely because it has been ascertained
that he holds views favourable to its interests."
        Similarly, Taylor in his great work on the "Law of Evidence,"
          (Edn.12), Vol.1, p.59, para. 58, observes:
"Perhaps the testimony which least deserves credit with a jury is  that of
skilled witnesses.  These witnesses are usually required to speak,  not to
facts, but to opinions; and when this is the case, it is often quite surprising
to see with what facility, and to what an extent, their views can be made to
correspond when the wishes or the interests of the parties who call them.  They
do not, indeed, willfully misrepresent what they think, but their judgments
become so warped by regarding the subject in one point of view, that, even when
conscientiously disposed, they are incapable of forming an independent opinion.
Being zealous partisans, their belief becomes synonymous with faith as defined
by the apostles, and it too often is; but 'the substance of things hoped for,
the evidence of things not seen'."

18.     In Abhayanand v. State of Bihar8, it was held that the opinion of an
expert under Section 45 of the Evidence Act engaged by a party suffers from the
defect that it is given by a remunerated witness.  He knows beforehand why he
has been called and what the party calling him wishes to be proved.  It is not
improbable that he has an unconscious bias in favour of the party.  These
circumstances to great extent detract from the weight to be attached to such
witness's opinion.
19.     In B. Poornaish v. Union of India9, a Division Bench of this Court while
dealing with expert's opinion under Section 45 of the Evidence Act observed that
agreeing to the document being marked by consent certainly did not mean that the
plaintiff accepted the correctness of every statement made by the expert and the
opinion of an expert must be given orally and that a mere report or certificate
by him cannot possibly be evidence unless statute so provides.
20.     The Kerala High Court in Hydru v. Govindankutty's case (4 supra) while
discussing Order XXVI Rule 10 CPC and Section 45 of the Evidence Act observed
that whether it be under Order XXVI or under Section 45 of the Evidence Act,
there is no prohibition as such against making a second reference to a
handwriting expert without setting aside the report of the first; the Court has
a discretion in the matter.  Of course it was further observed that to say so is
not to handover to the alcoholic the key of the distillery and to permit the
trial Courts to issue commissions galore, but only to distinguish a matter of
practice from a matter of law.  The discretion is there, of course, to be used
with circumspection.  It was further observed that Sub-Rule (3) of Rule 10 does
not specifically provide for wiping out evidence which is already part of the
record; it only contemplates a further enquiry and therefore a further report,
which will also become evidence and part of the record by virtue of Sub-Rule
(2).  Sub-Rule 2 of Rule 10 envisages that the report of the Commissioner and
the evidence taken by him shall be evidence in the suit and shall form part of
the record.  Thus language of Sub-Rule 3 of Rule 10 does not provide for setting
aside a report and issuing a new or second commission.  It was further observed
as follows.
"Very recently we have been hearing such experts speaking in different voices as
to the possible effect on ecology if a hydroelectric project is to be set up in
the Silent Valley.  Divergent views were expressed by engineers about the
possible methods for strengthening the Mullapperiyer Dam.  Why should anyone
insist that the court can have the assistance of only one scientific expert at a
time?  The proceedings of one expert may not be wholly useless; still the Court
may consider another report helpful."

21.     In Chhotu v. Gurbhajan10, it was held that if a Court is dissatisfied with
a Commissioner's report it can issue another commission, but the report of the
first commissioner cannot be wiped out of record.
22.     The Kerala High Court in K.L.D.M. & M.M. Board Ltd. V. Achuthan11, held
that the Court may issue a second commission for collecting more details if
considered necessary without setting aside the report of the first commission.
23.     In Gopalakrishnan v. P. Shanmugam12, the Madras High Court observed that
mechanical and indiscriminate appointment of more than one commission, merely
because the Court thinks the other party to the proceedings may not be
prejudiced or that the expenses for the commission are going to be borne by the
applicant for the purpose would create an unhealthy practice of not only more
than one report on records, but also would lead to the vice of a person or party
to the proceedings not being satisfied with the commissioner's report seeking
for the appointment of successive commissioners till he is able to get a report
of his choice.
24.     In Dr. P. Subramaniam v. KSE Board13, it was observed that it would not be
appropriate to hold that under no circumstances could a Court issue a second
commission, without setting aside the report of the first.  As far as the
comparison of signatures are concerned, the signature marked on Xerox copy of a
document can never constitute the basis.  The opinion of a handwriting expert
involves the analysis of the slant, which a person uses in the matter of putting
his signature, and in some cases, the point of time, at which it may have been
subscribed.  These analysis would become possible only vis-a-vis an original
signature.
25.     In Chockalingapuram Thevangar Vardhaga Sangam v. Chokkanathaswami    
Temple14, it is held as follows.
        "..................The Court which is concerned, with the adjudication of
an issue before it, is the best judge to decide the need or necessity to appoint
a commissioner, and that too, when it is asked for a second time.  If the Court
is satisfied with the request, in the interest of justice to both parties, it
can always proceed to set in a given case at the given stage, within the frame
work of its powers as envisaged in the code and particularly under sub-rule (3)
of Rule 10 of O.26 CPC is noticed above, it will always depend upon the facts
and circumstances of the case before it.  If only there is any abuse or failure
to exercise its discretion properly or there is any patent error in its exercise
of discretion, it is always open to this Court to interfere even at this stage
of the proceedings.........."
26.     In P. Sood & Co. v. Peerchand Misrimalji Bhansali15, a Division Bench of
the Madras High Court opined that the practice of sending original documents in
the custody of the Courts to the handwriting experts is highly objectionable one
and a very bad procedure.  It was further observed that proper procedure would
be to permit the handwriting expert to inspect the document in the Court
premises itself in the presence of some responsible officers of the Court and if
necessary the expert may be permitted to have photographic copies of the
documents in the presence of the responsible officers of the Court.
27.     The Division Bench of Kerala High Court, in Swami Premananda Bharathi v.
Swami Yogananda Bharathi16, while dealing with Order XXVI Rules 11 and 12 i.e.,
appointment of commissioner for auditing accounts opined that appointment of
second commissioner before superseding first commissioner's report and
proceedings is illegal and jurisdictional error.  It is to be noted that the
said decision was not dealing with the report of the expert under Rule 10-A.
28.     The learned Judge of this Court in Kushal Rao's case (1 supra) observed
that there is no provision under Order XXVI of the Code for appointing more than
one Commissioner or to reject the report of the Commissioners and evidence
without any justification.  "As a normal rule, two separate commissions should
not be issued to deal with one and the same subject and to treat the report of
both the Commissioners as evidence in the case.  It is only when the report of
the first Commissioner is unsatisfactory and the Court is dissatisfied with his
proceedings, that a second Commissioner could be appointed under the provisions
of Order XXVI Rule 10 Sub-Rule (3)".  Rule 10-A was not considered in the said
decision.   The commissioner was appointed to assess the mesne profits in that
case.  The learned Judge himself observed that when the report of the first
Commissioner is unsatisfactory  and the Court is dissatisfied with his
proceedings, that a second commission could be appointed under the provisions of
Order XXVI Rule 10 Sub-rule (3).  Therefore, even according to this decision
there is no bar to issue a second commission or to seek the opinion of the
second expert when the Court is dissatisfied with the proceedings of the
Commissioner.
29.     In R. Bhaskar Reddy's case (2 supra), this Court, while dealing with
Section 45 of the Evidence Act, observed that the party cannot seek sending of
document to another expert on the ground that opinion of first expert is against
him.  This Court further observed as follows.
"In my view, if the petition is allowed to send the document to another expert
and if the opinion of the second expert also goes against the petitioners they
may ask for sending the document to third expert and so on and so forth and
there will be no end.  It is pointed out that the petitioners have ample
opportunity to cross-examine the expert and elicit information from him.
Therefore, the learned Judge is right in rejecting the application of
petitioners."

30.     While dealing with Section 45 of the Evidence Act, in Korvi Rosaiah's case
(3 supra), this Court, having considered the earlier decision in R. Bhaskar
Reddy's case (2 supra), opined that no exception can be taken for the orders for
seeking opinion of a second expert.  Relevant paras are as follows.
"The signature of the petitioner on the vakalat was found to be at variance with
the one on the promissory note.  The respondent suspected that the petitioner
has deliberately changed the pattern of his signature on the vakalat.  It was in
this context that he wanted the signature of the petitioner on a loan
application form, which has nothing to do with the suit transaction, to be
compared with the one on the promissory note.  Such a course would result in a
valid and genuine exercise, under Section 45 of the Act.  No prejudice can be
said to have been caused to the petitioner.
In the decision cited supra, this Court held that a party cannot seek opinion
from another expert, if the earlier was not favourable to him.  In that case, a
second opinion was sought with reference to the same set of signatures i.e., the
admitted and disputed ones.  In the instant case, it is not so.  The respondent
entertained a doubt as to the genuinity of the very signature on the promissory
note."

31.     As far as scientific investigation is concerned, it may be difficult for
any Court to substitute its opinion.  Whether the expert has followed the
correct procedure or not, whether the expert's opinion is based on sound
reasoning or not, whether the expert has committed any grave error or not, and
whether the expert's opinion is biased in favour of one party or not cannot be
judged unless the same is critically examined.  Special knowledge and skills are
necessary.  As far as handwriting and signatures are concerned whether there are
any traces of tremor, hesitation, careful retouching, careful pen lifting
present or not have to be examined, because such things are usually present when
a forger attempts to copy the writing of another person.  These circumstances
were not taken into consideration in R. Bhaskara Reddy's case referred to above.
32.     Section 45 of the Indian Evidence Act (Act 1 of 1872) deals with the
opinions of third persons when relevant, which is as follows.
        S.45. Opinions of experts.- When the Court has to form an opinion upon a
point of foreign law, or of science or art, or as to identity of handwriting or
finger impressions, the opinions upon that point of persons specially skilled in
such foreign law, science or art, or in questions as to identity of handwriting
or finger impressions are relevant facts.
        Such persons are called experts.

33.     It has to be seen that plural words have been used in the above section.
The words used are the 'opinions' upon that point of 'persons' specially
skilled, again the words such 'persons' are called 'experts'.  The use of plural
words appears to be deliberate.  Opinion of the person is not used.  'Various
opinions' of the 'persons' have been specifically used.
34.     Section 46 of the Indian Evidence Act is as follows.
S.46. Facts bearing upon opinions of experts.- Facts, not otherwise relevant,
are relevant if they support or are inconsistent with the opinions of experts,
when such opinions are relevant.

35.     Let us examine the relevant provisions for coming to a reasonable
conclusion.
Rule 9 of Order XXVI deals with the commission for local investigations and Rule
10 is the procedure prescribed for the Commissioner while executing the warrant.
Rule 10 of Order XXVI is as follows.
"10. (1) Procedure of Commissioner.- The Commissioner, after such local
inspection as he deems necessary and after reducing to writing the evidence
taken by him, shall return such evidence, together with his report in writing
signed by him, to the court.
(2) Report and depositions to be evidence in suit.- The report of the
Commissioner and the evidence taken by him (but not the evidence without the
report) shall be evidence in the suit and shall form part of the record; but the
court or, with the permission of the court, any of the parties to the suit may
examine the commissioner personally in open court touching any of the matters
referred to him or mentioned in his report, or as to his report, or as to the
manner in which he has made the investigation.
(3) Commissioner may be examined in person.- Where the court is for any reason
dissatisfied with the proceedings of the Commissioner, it may direct such
further inquiry to be made as it shall think fit."

36.     Order XXVI Rule 10-A deals with the commission for scientific
investigation which is as follows.
"10A. Commission for scientific investigation.- (1) 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
thinks it 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.
(2) The provisions of rule 10 of this Order shall, as far as may be, apply in
relation to a Commissioner appointed under this rule as they apply in relation
to a Commissioner appointed under Rule 9."

37.     Rules 10-A, 10-B and 10-C have been newly inserted by CPC amendment Act  
104 of 1976 with effect from 01.02.1977.  Rule 11 deals with the Commission to
examine or adjust accounts.
38.     Rule 12(1) deals with the instructions to be given to the Commissioner by
the Court and sub-rule (2) of Rule 12 is as follows.
"(2) Proceedings and report to be evidence, court may direct further inquiry.-
The proceedings and report (if any) of the Commissioner shall be evidence in the
suit, but where the court has reason to be dissatisfied with them, it may direct
such further inquiry as it shall think fit."

39.     Rule 13 deals with the Commission to make partition of immovable property.
Rule 14 deals with the procedure to be adopted by the Commissioner appointed
under Rule 12.  Sub-rule (3) of Rule 14 is as follows.
"Where the court confirms or varies the report or reports it shall pass a decree
in accordance with the same as confirmed or varied; but where the court sets
aside the report or reports it shall either issue a new commission or make such
other order as it shall think fit."

40.     A reading of all these rules gives an impression that as far as commission
for scientific investigation under Rule 10-A is concerned, it is clear that only
the provisions of Rule 10 shall, as far as they may apply in relation to a
Commissioner appointed under Rule 10-A as they apply in relation to a
Commissioner appointed under Rule 9.  Thus, the relevant rules are only 9 and
10.  It appears that sub-rule (2) of Rule 12 is applicable when the commission
is appointed to examine accounts.  Similarly sub-rule (3) of Rule 14 is
applicable when a commission is appointed to make partition of immovable
property.  Therefore, those rules are not applicable when a matter is referred
for scientific investigation under Rule10-A.  Therefore, the decisions dealing
under Rules 11 to 14 may not be applicable to this case.
41.     Similarly, the provisions of Rule 10 may be applied as far as they may
apply in relation to commissioner appointed under Rule 10-A as they apply in
relation to commissioner appointed under Rule 9.  Therefore, the limited scope
of Rule 10-A should be kept in mind.  There is nothing under Rule 10-A or Rule
10 to set aside the report of an expert before entrusting the work to another
expert.  Since under Sub-rule (2) of Rule 10 the report of the commissioner and
the evidence taken by him shall be the evidence in the suit and shall form part
of the record, the reports cannot be rejected whether it is first or second.
The second commissioner can be appointed only when the Court is dissatisfied
with the proceedings of the earlier commission.
42.     Therefore, a combined reading of Rule 10-A and Sub-Rule (3) of Rule 10 and
Sub-Rule (2) of Rule 12 gives an impression that the report of the Commissioner
is part of the record of the Court and if the Court is not satisfied with the
proceedings and report of the commissioner it may direct such further enquiry
which include the issuing of second commission for the same purpose.
43.     In West's Legal Thesaurus Dictionary, the meaning of proceedings is given
as follows.
        "Proceeding, n.1. The form or manner of conducting business before a
court, agency, or other organization (adjudicative proceeding).  Steps, conduct,
course, mode, process, procedure, method, system, progress, measure, way,
methodology. 2. A litigation (contempt proceeding).  Case, action, prosecution,
suit, trial hearing, lawsuit, cause, inquest, inquiry.  3. A sequence of events
(an account of the proceedings).  Happenings, affairs, actions, occurrences,
agenda, goings-on, concerns, dealings, deeds, incidents, transactions, matters.
4. A record of what takes place at a meeting (the proceedings are kept in the
file).  Minutes, memoranda, archives."

Shorter Oxford Dictionary defines 'Proceedings' as follows.
        "Carrying on of an action at law, a legal action or process, any act done
by authority of a Court of alw; any step taken in a cause by either party."

44.     Sub-Rule (3) of Rule 10 envisages that where the Court is for any reason
dissatisfied with the proceedings of the Commissioner, it may direct such
further inquiry to be made as it shall think fit.  There is nothing in this rule
which suggest setting aside the earlier report or totally scrapping the earlier
report, more over Sub-Rule (2) of Rule 10 provides that the report of the
Commissioner shall form part of the record and shall be evidence in suit.  The
evidence has to be appreciated basing on the settled legal principles.
45.     Sub-Rule (2) of Rule 12 also provides that where the Court is dissatisfied
with the proceedings and report of the Commissioner, it may direct such further
inquiry as it shall think fit.  Therefore, further enquiry has been contemplated
under both the provisions.  It means, further enquiry is authorized by law, if
the Court is dissatisfied with the report or the proceedings of the
Commissioner.  There is nothing in law, which prohibits issue of second
commission, more over where it appears that the Court would have advantage of
considering the evidence or report of both the experts.

46.     The expert opinion cannot be and should not be considered as gospel truth.
Error is human.  However high one person may be, it does not mean that he cannot
commit any mistake.    The evidence has to be appreciated without any prejudice.
The Courts should not be influenced by the reputation, name and fame or
influence of a witness.  As far as the Courts are concerned, a witness is a
witness.  His evidence has to be considered on the touch stone of probabilities
and circumstances and when the evidence is put to critical examination with
rational outlook it may reveal whether such witness is a reliable witness or
not.  Then the Court would form an opinion whether to accept such evidence in
toto or to reject the same or to accept it in part and reject the same in part.
47.     The ultimate object of the Court should be to find out the truth.  One
party may assert the existence of a fact and other party may deny the same.  The
parties are allowed to lead evidence to establish their case.  Evidence means
and includes all statements which the Court permits or required to be made
before it by witnesses in relation to matters of fact under inquiry.  Evidence
may be oral or documentary.  All documents including electronic records produced
for the inspection of the Court are called documentary evidence.  When a party
intends to adduce evidence in support of its contention i.e., to prove its
contention or disprove the contention of opposite party, the doors of the Court
shall not be closed at the stage of trial.  The parties should be allowed to
adduce all relevant and necessary evidence oral and documentary.
48.     As far as expert is concerned, who is a specialist in knowledge and
experience he is expected to give correct opinion.  The opinion of expert is
sought with the special knowledge which they have obtained in the subject and
with their rich experience they will be in a position to give their expertise
opinion.  The Courts consider the evidence of expert on various aspects such as
with regard to the age of the injury, age of the document, age of the stamp,
nature of weapon used in the commission of offence, and with regard to hand
writing etc.  The expert, having regard to several factors, gives his opinions.
His opinions are drawn on the conclusions based on the material placed before
him and scientifically considered by him.  The evidence of expert generally
depends upon certain observations made by him, which cannot be denied by  
anybody.  However, we have seen in some cases wherein the opinions of the 
experts are not up to the mark.
49.     There are basic differences in the methodology adopted by the experts.
Even an expert may commit a mistake.  When a mistake is committed by an expert,   
the other side Advocate, while cross-examining the expert, may point out those
errors.  But, some times, it may not be possible for the advocates to elicit
those errors in the cross-examination due to lack of expertise knowledge.  In
such circumstances, great injustice may be done to the parties.  Even the Court
may not be in a position to detect those errors committed by an expert.  It
appears that another expert who has special knowledge in the subject may be in a
position to point out those errors.  Even, in any unfortunate situation, if an
expert is won over by the party, then such a situation could be saved by
obtaining opinion of another expert.  Then the Court will have the advantage of
looking into the reports of both the experts in such a situation.
50.     It is argued that we will be opening Pandora's box if the parties are
allowed to seek second opinion.  As we have observed earlier it is the duty of
the Court to ascertain the fact.  The goal of the Court should be to find out
the truth and for the purpose of arriving at a truth we may have to proceed a
longer distance in a particular case.  The procedural aspects should not come in
the way of finding the truth.  The procedural law should always be subvergent to
the substantive law. Therefore, seeking the opinion of a second expert in such
cases may be necessary for rendering complete justice.  As far as Sections 45
and 46 of the Indian Evidence Act are concerned, the same is undoubtedly a part
of substantive law and whereas the provisions under Order XXVI of CPC appear to
be procedural.
51.     Therefore, we are of the view that there is no bar to take the opinion of
a second expert without setting aside the earlier report.  However, it is not
desirable to appoint second commissioner or to refer to the second expert
without there being any valid reasons.  There should be special circumstances
and the Court must record its reasons for sending the document to the second
expert or for appointing a second commissioner.  If the circumstances warrant,
the Court may appoint second commissioner or to seek the opinion of a second
expert in the light of the language of Order XXVI Rule 10-A of CPC read with
Section 45 of the Indian Evidence Act.  The salient features, essentials and
distinction between Order XXVI Rule 9 and Order XXVI Rule 10-A of CPC read with
Section 45 of the Indian Evidence Act always to be kept in mind.  We are in
complete agreement with the opinion of the learned Judge in Korvi Rosaiah's case
(3 supra).  Moreover, we are of the view that the doors of the trial Court shall
not be shut at the initial stage.   The parties must be given full opportunity
to adduce evidence and the other side must be given the same opportunity to
adduce rebuttal evidence.
52.     In the cases arising out of Prohibition and Excise Act, if the accused is
aggrieved with the opinion of the expert then he will be given an opportunity to
send another sample for the second opinion.
Therefore, in cases where the Court
is of the opinion that the report of the expert is not satisfactory, where the expert has not followed the required procedure, where the findings of the expert appears to be prima facie incorrect, where there is an error on the face of the record, where it appears that the commissioner or expert had acted in a partisan
manner and where the deficiency in the report cannot be completed by the same Commissioner or expert or where the Court feels that referring the matter to second Commissioner would be useful for better appreciation of evidence and for
reaching just conclusions, the Court may refer the matter to second commissioner or to the second expert for his opinion, even without setting aside the earlier report or opinion.
53.     Since there appears to be some truth in the allegation that the respondent
had changed his style of signature from time to time and expert had not compared
all the specimen signatures sent to him and in view of the variation between S-
10 and S-11 and since Exs.C1 to C4 and Exs.X1 to X4 appear to have been obtained 
subsequently it may be just and reasonable to direct the second expert to
examine these signatures and compare the same with the disputed signatures and  
such course would result in a valid and genuine exercise.
54.     In this case, admittedly, there are certain peculiar circumstances as
admitted by the expert as referred to above.  Therefore, the lower Court seems
to have committed an error in dismissing the petition.
55.     In the peculiar circumstances of this case, we allow the revision and the
order of the lower Court passed in I.A. No.842 of 2008 in O.S.
No. 149 of 2002, dated 16.09.2008, is set aside and consequently I.A.
No. 842 of 2008 stands allowed. In the circumstances, no costs.

?1  1997 (1) ALT 93
2  1998 (2) ALT 384
3  2006 (3) ALT 605
4  AIR 1982 Kerala 49
5  1996 Cri LJ 1228, 1232 (Bombay)
6  AIR 1992 SC 2100
7  AIR 1933 Lahore 561
8  AIR 1959 Patna 328
9 AIR 1967 A.P. 338
10  AIR 1972 P & H 265
11 2001 (1) KLT 440 (445) (Ker)
12  AIR 1995 Madras 274
13  AIR 1988 Kerala 169
14  AIR 1996 Madras 148
15  2005(3) CTC 12
16  AIR 1985 Kerala 83