The present revision has been filed by the defendant in the suit, challenging the dismissal of the application filed in I.A.No.402 of 2006 in O.S.No.685 of 2003, wherein, the petitioner has sought for the report of the Forensic Expert by comparing the alleged signature of the petitioner found in the suit agreement with that of the vakalat, written statement and Ex.A6, sale deed.
2. The brief facts of the case are as follows:
The petitioner herein, is the defendant in the suit. The suit is filed for specific performance based upon the agreement signed by the petitioner. Pending the suit filed in O.S.No.685 of 2003, an application was filed by the petitioner seeking a report of the Forensic Expert for comparison of signatures. The said application was dismissed by the Court below, holding that Ex.A1 cannot be compared with the vakalat, written statement and Ex.A6, being a xeror copy of the sale deed. The Court below also dismissed the application on the ground of delay. Challenging the same, the petitioner has preferred this revision petition.
3. In order to appreciate the contention of the parties, the provisions contended in Order 26 Rule 10A of the Civil Procedure Code need to be looked into. Order 26 Rule 10A of the Civil Procedure Code has been inserted by Act 104 of 1976. The said provision is extracted hereunder for useful reference:
"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."
A reading of the said provision would show that if a scientific investigation is required to be conducted in a suit for deciding the dispute between the parties and if in the opinion of the Court, if such investigation cannot be done before the Court, then the concerned court may issue a Commission to such person directing him to address such questions and get a report to the Court. Therefore, a specific power is conferred on the Court under Order 26 Rule 10A of the Civil Procedure Code to conduct scientific investigation for the purpose of deciding the case. In order to conduct such specific investigation, the Court has also got a power to appoint a Commissioner as indicated under Rule 10(2) of the Civil Procedure Code.
4. The word scientific investigation would also include sending the documents to a Forensic Expert in order to find out the truth or otherwise, as to whether a party to a suit has in fact signed the disputed document or not. Hence, the power is conferred under order 26 Rule 10A of the Civil Procedure Code to the Court to send a document to be compared with other admitted documents and get a report from the Forensic Expert.
5. The said document will have to be sent by appointing a Commissioner. The Commissioner appointed to the Court is an Advocate Commissioner, who incidentally is an officer of the Court answerable to the Court. Therefore, the Commissioner, being an officer of the Court, the custody of the document with Commissioner is deem to be a custody with Court.
6. The Civil Court has no doubt, got the powers under
Section 73 of the Indian Evidence Act to compare the signatures made in a disputed documents with the admitted documents. The said power of the civil Court would be used sparingly and the Court below will have to give specific reasons while giving findings based upon that. However, the civil Court in all probability shall avoid such comparison, since it is always desirable to make the comparison with naked eyes instead of having access to an expert's opinion.
7. Prior to the introduction of Act 104 of 1976, by which, Order 26 Rule 10A of the Civil Procedure Code has been introduced the power was still available with the Court under
Section 45 of the Indian Evidence Act. However, Order 26 Rule 10A of the Civil Procedure Code specifically clothe the Civil Court with a power to do scientific investigation which includes the power to send the document to an expert warranting a report. In view of the said power, the Civil Court will have to exercise the same, if in the opinion of the civil Court that the evidence of the Forensic Expert is very much necessary for deciding the dispute between the parties. In such an event, the Civil Court instead of invoking its power under
Section 73 of the Indian Evidence Act shall have to exercise its power under Order 26 Rule 10A of the Civil Procedure Code.
8. The practice of either sending the copy of the original documents or directing the expert to come to the Court has been found to be impractical and difficult to implement. Moreover, there is no such procedure contemplated under the Civil Procedure as against the Order 26 Rule 10A of the Civil Procedure Code. It is a well known fact that the Science and Technology has improved in leaps and bounds and it is always desirable to have the assistance and aid of an expert. It is also a matter of fact that an expert cannot bring all his instruments before the court for the purpose of finding out the fact that a party has signed the disputed document or not. Above all, it is nearly impossible for an expert to visit all the Courts through out the state for the above said purpose. Therefore, this Court is of the opinion that the provisions contended under Order 26 Rule 10A of the Civil Procedure Code will have to be complied with by the Civil Court in letter and spirit by sending the document to the expert instead either asking the expert to come to the Court or sending a copy of the document to the expert. It is also to be noted that it is very difficult for the expert to compare a copy of the original document. Similarly, it is always desirable for the Court to send the original document to the Government department while asking for a report. It is also to be noted, that there are not many Government experts with facilities in the State, in which there are number of Civil Courts.
9. As observed above, a report of the handwriting expert comes within the meaning of scientific investigation. The Scientific Investigation would mean ascertainment of facts by observation and experiment, critically tested, systematized and brought under a set of principles. The Division Bench of the Hon'ble High Court of Orissa in the judgment reported in AIR 1987 Orissa 7 (Natabar Behara Vs. Batakrishna Das) has held that a report of the handwriting expert gives the meaning of scientific investigation as mentioned under Order 26 Rule 10A of the Civil Procedure Code.
10. When the Civil Court decides an application filed under provisions of Order 26 Rule 10A of the Civil Procedure Code, the Court has to decide as to whether the said application is necessary for the purpose of deciding the case. While deciding the said application, the Civil Court cannot reject the application only on the ground of delay, until or unless it comes to the conclusion that the application lacks bonafides or the same has been filed with the sole view to protract the proceedings.
11. In the judgment reported in AIR 1928 Privy Council 277 (Kessarbai Vs. Jethabhai Jivan), it has been held that the mere comparison of admitted signatures without expert advice or microscopic examination is dangerous. In the judgment reported in 1996 (2) SCC 704 (O.Bharathan Vs. K.Sudhakaran and another), the Hon'ble Supreme Court has held that the Court itself should not compare the disputed signatures without the assistance of any expert when the signatures with which the disputed signatures are to be compared are themselves not the admitted signatures. Similarly, in the judgment reported in 1997 (1) MLJ 304 (Kothandapani Padayachi Vs. Ranganatha Padayachi and others), the Hon'ble High Court has held that it is advisable to have an assistance of handwriting expert and the court shall be slow in venturing on an opinion on the basis of mere comparison. In the judgment reported in 1997 (2) MLJ 37 (Dhanakodi Padayachi Vs. Muthukumaraswami), the Hon'ble High Court has again held that the Court shall not compare the disputed and base its conclusion thereon.
12. On a consideration of the above said judgment, it is clear that the Court should avoid the comparison and when such a situation has arisen, the Court itself even without an application by any other parties can invoke the power under Order 26 Rule 10A of the Civil Procedure Code.
13. In the judgments reported in 1968-2-MLJ-48, (1971)84-LW-348, 1976-1- MLJ-11 and 1998-3-CTC-140, the Hon'ble High Court has held that a document cannot be sent out of the Court for the purpose of getting a report of the expert. A reading of the said judgments would show that they have been rendered without taking into consideration of the Order 26 Rule 10A of the Civil Procedure Code and when such a provision was not available at the time of rendering the orders. Therefore, this Court is of the opinion that the above said judgments which have not considered Order 26 Rule 10A of the Civil Procedure Code cannot be made applicable when the Civil Court exercise its power. In the judgment reported in 2006 (4) CTC 850 (N.Chinnasamy Vs. P.S.Swaminathan), the Hon'ble High Court has held that only when the expert expresses difficulty in examining the documents before the Court, a document can be sent outside. A reading of the said judgment also would show that the same has not specifically considered Order 26 Rule 10A of the Civil Procedure Code. In fact, the circular of the Hon'ble High Court referred in the earlier judgments are in pursuant to the judgments rendered earlier when the provisions of Order 26 Rule 10A of the Civil Procedure Code was not available.
14. In a recent judgment reported in 2009 (2) MLJ 665 (S.M.Narasingam and others Vs. S.M.Sridharan and others), the Madurai Bench of Madras High Court has held that a document can be taken to the expert to verify in the presence of the Commissioner. In fact, in the judgment reported in 1996 (1) LW 255 (Utham Prabhat Industries by Partner Seshmal C.Bafna Vs. P.Subramaniam, Proprietor, Sridevi Products etc.), the Hon'ble High Court has clearly held that a document can be taken by a Commissioner, being an Officer of the Court for the purpose of getting the report from an expert. The said principle has been affirmed by the Hon'ble Supreme Court in the judgment reported in 2009 (1) MLJ 1359 (SC) (Damara Venkata Murali Krishna Rao Vs. Gurujupalli Satvathamma). Hence, this Court is of the opinion that there is no bar for the Court to order the appointment of a Commissioner for the purpose of taking the documents to an expert so as to enable him to get the report in view of the powers granted under Order 26 Rule 10A of the Civil Procedure Code.
15. While comparing the documents, the Civil Court has to order the comparison of the documents which are disputed with the admitted documents alone. The Court below cannot compare the signatures contained in the disputed documents with the one available in the vakalat and written statement of a party. In this connection, it is useful to refer the judgment of the Division Bench reported in 2006 (3) MLJ 567 (Mad-DB)(Central Bank Vs. Antony Hardware Mart) cited in (2009 (4) MLJ 751 (P.Natarajan Vs. Parasuraman and another), wherein, the Hon'ble Division Bench was pleased to hold that there cannot be any comparison of a disputed document with that of the signatures contained in the vakalat and written statement. In so far as the delay in filing the application is concerned, a mere delay in itself will not prevent the party in filing the application. In the judgments reported in 1998-3-CTC-650, 2003-3-MLJ-408 AND 2005-3-MLJ-268, the Hon'ble High Court has held that mere delay cannot be a ground for rejecting an application seeking exercise of power under Order 26 Rule 10A of the Civil Procedure Code. In the judgment reported in 2005 (3) MLJ 268 (Chinnappan and another Vs. Chinnammal), the Hon'ble High Court has held that in a given situation, the power can be exercised even at the appellate stage. In the judgment reported in 2009 (1) MLJ 1359 (SC) (Damara Venkata Murali Krishna Rao Vs. Gurujupalli Satvathamma), the Hon'ble Supreme Court was pleased to hold that the Court has to consider the facts and circumstances of each case for ordering the application filed under Order 26 Rule 10A of the Civil Procedure Code and such an application cannot be rejected merely because the same has been filed belatedly. Hence, the civil Court will have to see the circumstances under which the application is filed. In the said case, the Hon'ble Supreme Court was pleased to hold that even though the application was filed after closing the evidence, there is no delay in filing the same, since the witness denied the execution only at the point of time.
16. A mere wrong quoting of the provision will not prevent a party from getting the relief sought for if the statute provides such a power. Therefore, when an application was filed seeking to send the document to the expert, the same shall not be dismissed on the ground of wrong quoting of the provision of law. Similarly, in view of the power available to the civil Court under Order 26 Rule 10A of the Civil Procedure Code to send the document to the expert seeking a right, the said power can be exercised even when a different prayer is sought for seeking a report by requesting the expert to come to the Court and give the report or sending a copy of the disputed documents for examination instead of the original one. In the judgment reported in 2008 (2) Crimes 219 (SC) (T.Nagappa Vs. Y.R.Muralidhar), the Hon'ble Supreme Court has pleased to observe that it is a well settled principle of law that the wrong mentioning of provision of law would not be of any relevance, if the Court had the requisite jurisdiction to pass the orders.
17. In the present case on hand, it is seen that the application has been filed on 05.09.2006. The petitioner has filed written statement as early as in the month of January 2004. There is no explanation for the delay in filing the application. Further, the petitioner seeks to compare the disputed documents with that of the signatures contained in the vakalat and the written statement which is impermissible in law. The trial court has also found that Ex.A6 is only a xeror copy and the application has been filed after the evidence of the plaintiff's side is over. Therefore, this Court finds that under those circumstances, the reasoning given by the Court below cannot be found fault with. Hence, the revision deserves to be dismissed. However, a mere delay alone cannot be a ground for dismissing the application. Therefore, while dismissing the revision, liberty is given to the petitioner to file a fresh application seeking to compare the disputed agreement with the original admitted document.
18. However, on a consideration of the above said legal position, the following principles emerge for consideration:
1. The civil Court is having jurisdiction to send the document to the Forensic Expert for comparing the signatures between the disputed documents with the admitted documents by appointing a Commissioner and get a report.
2. When the civil Court is exercising its power under
Section 73 of the Indian Evidence Act, the civil Court will have to exercise its power under Order 26 Rule 10A of the Civil Procedure Code instead of invoking
Section 73 of the Indian Evidence Act.
3. The Advocate Commissioner, being an officer of the Court can be asked to take the original document.
4. When the Advocate Commissioner takes the original document, then a certified copy of the same will have to be kept under the custody of the Court.
5. The civil Court cannot direct the disputed document to be compared with the vakalat or written statement of a party.
6. When the civil Court comes to the conclusion that the power under Order 26 Rule 10A of the Civil Procedure Code should be invoked, then the civil Court shall invoke the same even without an application from the parties concerned in the interest of justice and in order to solve the dispute between the parties.
7. When a document is sent to an expert it should be sent only to the Government Department Expert and not to a private Expert. While sending a document to an expert, the original of the same has to be sent since it is not possible to compare the xerox copies with the other admitted documents.
8. The civil Court shall not dismiss an application seeking for the examination of the document by an expert on the ground of wrong quoting of provision of law and in such a case, the Court shall exercise under Order 26 Rule 10A of the Civil Procedure Code.
9. The civil Court shall exercise under Order 26 Rule 10A of the Civil Procedure Code even when a prayer is sought for a direction to summon the expert to the Court for the purpose of examining the document.
10. An application filed under Order 26 Rule 10A of the Civil Procedure Code will have to be filed at the earliest opportunity in the normal circumstances.
11. However, an application under Order 26 Rule 10A of the Civil Procedure Code cannot be dismissed merely on the question of delay alone, unless the same is willful and deliberate.
With the above observations, the Civil Revision Petition is hereby dismissed. Consequently, connected Miscellaneous Petition is closed. There shall be no orders as to costs.
DP To The Principal Subordinate Judge, Dindigul.