1. In a suit of year 2002 the original plaintiff gave an application inter alia urging the Court to send the disputed signature for examination of hand writing expert vide application Exh. 96 which came to be rejected on 19th January 2011. Yet another application for examining the hand writing expert was given vide Exh. 105 in the very same suit being Regular Civil Suit No. 737 of 2002 and that also was rejected as well by the Court.
2. Being aggrieved by these rejections, this petition is preferred under Article 227 of the Constitution of India.
2.1 To briefly state the controversy, the petitioner is the original plaintiff who sought a declaration in respect of a registered sale deed executed on 29th December 2000 inter alia urging the same to be declared as null and void and not binding to the petition. It is also urged therein by the petitioner that the signature made in the registered sale deed is forged and the same requires scrutiny from the expert. However, the Court chose not to allow such application by passing an impugned order dated 19th January 2011. After the evidence of the plaintiff was almost at the fag end plaintiff gave yet another application for documentary evidences vide Exh. 105 contending therein that the opinion of private handwriting expert was obtained and the same was required to be produced on record. However, such a request was denied hence, this petition.
3. Learned advocate Mr. Dagli appearing for the petitioner original plaintiff fervently urged that this is not going on to have major impact on the case of the plaintiff but the same is not likely to prejudice the right of the otherside that the Court erred in not appreciating the provisions of section 73 of the Indian Evidence Act and looking to the nature of the dispute both provisions of section 73 and 45 of the Indian Evidence Act shall be regarded by the Court and subsequent application preferred at Exh. 105 was rejected on the ground that on earlier occasion the Court had rejected such application for getting government hand writing experts opinion. Mr Dagli has relied upon the decision of Apex Court in the case of Murarilal, Vs. State of M.P the AIR 1980 SC 531. The judgment has been rendered in a Criminal Appeal wherein in the murder trial, question was of deciphering writings of the deceased and the said writings were found to be indicating the presence of the deceased and one of the accused on the night of murder, when it was argued before the criminal court that the evidence of hand writing expert should not be acted without substantial corroboration.
3. Per contra learned advocate Mr. Anshin Desai strongly objected to allowing this petition. He urged that earlier order passed below Exh. 96 never came to be challenged and after much delay, such application has given vide Exhibit 105 and this is nothing but a misuse of process of law. He also further contended that an opinion if was produced at an earlier stage, during the crossexamination of the present plaintiff, the respondent herein could have taken note of the same. Moreover it is a settled law according to the learned advocate that unless the ground is made out for referring the disputed writing to the hand writing expert, on mere allegation the same need not be permitted. The Supreme Court with a observation that the expert is not accomplice which is read as under :
4. “There is no justification for condemning his opinionevidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses the equality of credibility or incredibility being one which an expert shares with all other witnessesbut because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically nonexistent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
“6. Expert testimony is made relevant by S.45 of the Evidence Act and where the court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S.3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act.
Further, under S.114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S.46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert, should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.”
4. In light of the discussion above the order impugned is examined, application Exh. 93 contends that the original sale deed does not bear the signature of plaintiff. The said document was sent to the handwriting expert along with the specimen signature of plaintiff. The Court was of the opinion that such application was made earlier only to delay the proceedings in the suit of year 2002. No such application was made earlier and there was also direction for expeditious hearing of the suit.
5. Again as was made out in the crossexamination of petitioner and as noted by the Court, there was signature of one of the witnesses who was a bond writer and the plaintiff was not desirous to examine such person as a witness. The Court also noted that evidence of the plaintiff was over by 27th September 2010 and at an earlier point of time such a request made by the plaintiff and rejected by the Court was not challenged.
4.1 This never came to be challenged by the petitioner herein at a earlier point of time. By moving application exh.105 petitioner urged the Court that the opinion has been sought for from the hand writing expert Mr. J.J Patel who is a private handwriting expert and therefore, the Court may allow the examination of the hand writing expert, it too was rejected by the Court on the ground of res judicata and also on the ground that this was an attempt to further delay the proceedings.
5. As can be noted from the plaint in this case, from the beginning, it is the case of the plaintiff that the suit land is owned by the plaintiff from the year 1979 and he was shown to be an owner in the revenue record as well. This was also mortgaged with the UCO bank. However, defendant No. 2 was a confidant of the plaintiff who was a caretaker. It is further alleged that on creating forged signature of the plaintiff, the defendant No. 2 has alienated the said land and accordingly the defendant No. 1 became the owner. He has all along pleaded that his signature has been forged and since, this came to his notice on 8th May 2002 and therefore the suit has been brought.
6. Thus in essence it is the case of the plaintiff from inception that his land has been transferred by forged signature.
7. Thus of course is taken by the respondent defendant that with a view to extract more money such suit has been brought without signature of cancellation of registered sale deed and instead of impleading getting support from the defendant No. 2 was a caretaker. He has been impleaded as party defendant, from the various contentions raised in the defence.
8. The petitioner plaintiff if had been made any allegation for differing the disputed document to the handwriting expert that ipso facto would not take away his right to get that fact decided from the expert. If there is availability of getting aid of the scientific expert there is no reason why the Court should shy away from getting the same. There are salutary provisions made under the Indian Evidence Act. On the basis of the provisions incorporated in the said act, both the applications appear to have been given by the plaintiff petitioner. It is not for the first time that the plaintiff has come out with the case of forgery after eight years of the suit and he is attempting to delay the proceedings. It has been his case from the beginning and if he has denied to examine that defendant No. 2 as a witness who has signed the document, that ipso facto cannot be a ground to question his intention in as much as in the plaint itself, there are allegations against original defendant No. 2 who is alleged to have misused the trust.
9. The question to be determined therefore, at present as to whether such disputed document requires reference to the handwriting expert since the application Exh. 96 had been rejected, denying the request of the petitioner to send the disputed document to the government handwriting expert.
10. In a subsequent application Exh. 105 a request is made to allow the opinion of the private handwriting expert to come on record so also to allow such an expert to be examined. As noted by the Apex Court in the case of Murarilal (supra) it is always better to form an opinion upon the expert's opinion and if there is no availability of such opinion, the Court is expressly authorised under section 73 of the Evidence Act to compare the disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to so have been written. It is also held therein that if it is hazardous to so do, as sometimes we are afraid, it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard and there may be cases where neither side calls an expert being unable to afford him.
11. In such background there is no reason as to why such document should not be allowed to be produced and the witness be examined. Assuming that earlier order of rejection remains unchallenged and subsequent application indirectly is leading to the very same objective, nevertheless, when the request is not for reference but to permit opinion to be brought on record and also to examine the concerned expert, neither the ground of delay nor the issue of dilatory tactic hold ground. Even otherwise, when entire thrust is upon forgery of signature and for such an issue aid of an expert is available without any hazardous procedure, no plausible reasonings may be potent enough to deny such assistance. In the opinion of this Court, the Court erroneously shut the doors of such scientific evidence which has a capability of putting an end to the matter of controversy largely and moreover, when the opinion of a private expert is already sought, there is no likelihood of further delay in getting the same admitted and disputed writings to be examined.
12. Thus, the order impugned requires to be set aside the petitioner is permitted the production of opinion of the expert and if further desired to call the expert without further loss of time. Again to strike the balance to ensure that no advantage is taken of absence of such opinion at the time of cross examination of plaintiff, petitioner respondent is permitted to make a request to the trial court to allow further cross examination of the plaintiff if respondent so chooses.
10. With the above observation/direction this petition succeeds and stands disposed of accordingly.
(Ms. Sonia Gokani,J.) mary//