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
