P.K Mohanty, J.:— This Revision is directed against the order of the learned Civil Judge (Senior Division), Berhampur rejecting the application under Order 26, Rule 10(A) of the Code of Civil Procedure for sending the disputed signature in the alleged agreement for sale of the suit house for examination and opinion of the handwriting expert.

2. The short facts of the case is that the opposite party filed Title Suit No. 19 of 1992 in the Court of the learned Civil Judge (Senior Division), Berhampur for a decree of specific performance of contract basing on the agreement (Ext. 2). The petitioners filed Title Suit No. 94 of 1992 for eviction of the opposite party from the suit house. Both the suits were taken up for analogous hearing. The present petitioners filed an application under Order 26, Rule 10(A), C.P.C read with Section 151, C.P.C and prayed for sending Ext. 2 to the handwriting expert mainly on the ground that both the parties produced oral and documentary evidence in respect of their respective contentions and in order to arrive at a right conclusion the purported agreement for sale of the disputed house (Ext. 2) which is the sole basis of the claim for specific performance of the contract, it should be examined by scientific expert i.e handwriting expert. The opposite party filed his objection to the petition contending inter alia that Ext. 2 has already been proved by PWs 1, 2, 3 and 4, and in view of the evidence on record the document does not require any scientific investigation specially when the Court is the expert of experts, and can determine the point by comparing the admitted signature in other documents with Ext. 2. A further objection was taken that the petition has been filed to cause delay and prejudice to the opposite party and as such, the application at the fag end should be rejected.

3. The learned Civil Judge (Senior Division) by his order dated 15-12-2000 rejected the application mainly on the ground that in course of hearing of the suit both sides have led oral and documentary evidence in support of their respective claims. The plaintiff sought to prove the due execution of the agreement (Ext. 2) and the signature of defendant No. 1 thereon through PWs. 1 to 4 and the defendants have also led evidence to disprove the same by adducing oral and documentary evidence from their side. In addition, defendant No. 1 took the plea that on the date of the alleged execution of the agreement he was out of Berhampur. The learned Court was of the opinion that since the evidence of both sides was already before the Court, the Court can conveniently give its finding on the question by scrutinising the documentary and oral evidence led by both sides and it does not involve any scientific investigation. It was also observed that the opinion of handwriting expert is not final and conclusive and it is open for the Court to accept or discard the opinion of the expert after examining him. The burden to prove the due execution and signature thereon being on the plaintiff, ordinarily he should have prayed for sending the document for expert's examination, but filing of such a petition for expert's opinion by the defendant after seeking a plea of alibi by the signatory himself may be for the purpose of delaying the disposal of the suit. Hence, the present revision challenged the said order.

4. Mr. M. Misra, learned counsel for the petitioners assailing the order of the learned trial Court contends that the defendants opposite party having challenged the genuineness of the alleged agreement for sale of the suit house (Ext. 2) on the specific ground that it is a fabricated document and the signature of the defendant No. 1 appearing therein has been forged, the learned trial Court ought to have held that the opinion of the scientific expert like a handwriting expert was necessary for a just decision of the dispute, inasmuch as the observation that the plaintiff ought to have prayed for sending the document for opinion of the expert and not the defendant was a misconception of law since it is the defendant who has taken the specific plea in their written statement that the document was manufactured one and the signature of defendant No. 1 has been forged. It is further submitted that the rejection for the petitioners' application on the ground of delay is also erroneous inasmuch as the delay, if any, could only prejudice the defendants, the plaintiff being in possession of the suit house without paying any rent. Submission is made that the entire approach of the learned Civil Judge is on misconstruction and misconception of the provision of Order 26, Rule 10(A), C.P.C and, therefore, is liable to be reversed.

5. Mr. C.A Rao, learned counsel for the opposite party oppose the Revision mainly on the ground that the order rejecting the application under Order 26, Rule 10(A), C.P.C being not a final order the present Revision before this Court is not maintainable in law. It is contended that by the impugned order refusing to send the signature of the handwriting expert, no application of the parties in controversy is adjudicated upon, but it is a matter of prudence and as such, the present Revision as against the said order is not maintainable in law. It is submitted that in view of the evidence already on record the learned trial Court was competent to pronounce its decision on the basis of the available materials on record and on scrutiny of the disputed signature along with the admitted signatures available and as such, the rejection of the petitioners' application was otherwise legal and not liable to be interfered with.

6. In view of the submissions made by the learned counsel for the parties the first question that needs determination is as to whether the present Civil Revision is maintainable in law as against an order rejecting an application under Order 26, Rule 10(A), C.P.C Mr. Rao, learned counsel for the opposite party has pressed into service a decision of this Court in Gopal Krishna Badu Mohapatra v. Girish Chandra Naik (2001) 91 Cut LT 292. In that case the Bench observed that the revisional power under Section 115, C.P.C is available in respect of orders which suffers from jurisdictional error and not for any simple error on fact and law. The order with regard to calling for a document was held to be an interlocutory order in the progress of the case and not an order which can be said to be deciding right or obligations of the parties. This decision, therefore, has no application to the facts of the present case. The learned counsel has further referred to the decision of this Court in the case of Sabitri Debi & Another… v. Baikuntha Das & Another…Opp. Parties. (1979) 47 Cut LT 266 : (AIR 1999 Orissa 140) in support of his contention that a Revision as against an order rejecting an application under Order 26, Rule 10(A), C.P.C is not revisional. I will deal with the case later along with the decision of this Court and the Apex Court on this issue. Reference has also been made to the decision of this Court in Ramesh Lal Shantuka… v. Suresh Lal Shantuka…Opposite Party., (1984) I OLR 967 : (AIR 1986 Orissa 69) wherein it has been held that even if it is an order which amounts to a case decided still it must satisfy clauses (a), (b) and (c) of Section 115, C.P.C and the proviso to Section 115(1), C.P.C There is no dispute over the proposition, but whether it is a case decided and goes to the root of the right and the root and claim of the parties has to be gone into. A further reference has been made to the decision of the Apex Court, in Ratilal Balabhai Nazar v. Ranchhodbhai Shankarbhai Patel, AIR 1966 SC 439. In that case the Apex Court in another context observed that if the trial Court has jurisdiction to decide the question before it and did decide rightly or wrongly, the Court has jurisdiction to decide the case even if it decided the question wrongly it cannot be said that exercise of jurisdiction is illegal or with material irregularity to interfere in the Civil Revision. This decision is, therefore of no assistance to the contention raised. The learned counsel then referred to the decision of this Court in Gafur Saha… v. Sabatun Bibi…Opp. Party.; (1993) 75 Cut LT 703 wherein this Court observed that the High Court cannot interfere in a revision unless the order has either finally disposed of the suit or other proceeding and unless it is a case of irreparable injury and failure of justice. Suffice to say that there cannot be any quarrel over the broad propositions made, but what is to be seen is as to whether it applies to the facts of a given case.

7. Mr. M. Misra, learned counsel for the petitioners has placed reliance on the decision of this High Court in Durga Prasad Agarwalla v. Binayendranath Banerjee (1996) 82 Cut LT 737 and contends that in view of this decision, the decision of this Court in Sabitri Debi's case (AIR 1979 Orissa 140) (supra) is no more good law, it having not taken into account the decision of the Apex Court in State v. Pali Ram, AIR 1979 SC 14. The learned single Judge in that case took the view that rejection of an application for sending the document to a handwriting expert illegally would materially affect the party and may occasion in failure of justice and as such, is revisable while following the decision in AIR 1979 SC 14 (supra). The learned counsel for the petitioners has also pressed into service the decision in Nanda Kishore Mohapatra v. Binayak Mishra, (2000) I OLR 92 in which the learned single Judge relying on the decision of the Apex Court in Durga Prasad Agarwalla's case (supra) held that an order rejecting an application for sending the signature for handwriting expert's examination come within the meaning of the expession “case decided” and a revision under Section 115 C.P.C to the High Court is maintainable.

8. A reference may also be made to a recent decision of the Apex Court in Kadiyala Rama Rao v. Gutala Kahna Rao (dead) by LRs. (2000) 3 SCC 87 wherein their Lordships have observed that a revision application against an order which is not appealable either before the Subordinate Court or the High Court would also be maintainable.

9. A conceptus of the decision referred to above unerringly lay down the law that a revision application is maintainable as against an order rejecting an application under Order 26 Rule 10(A) C.P.C and as such, it has to be held that the present Civil Revision is maintainable as against the impugned order.

10. The next question that arises for consideration is as to whether the impugned order rejecting the petitioners' application for sending the disputed signature appearing in Ext. 2 for examination and opinion of the handwriting expert is in accordance with law and can be sustained. The suit for specific performance of contract which is under adjudication was at the instance of the plaintiff-opp. party on the basis and foundation that the defendant No. 1 had executed a deed of agreement to sale the disputed property (Ext. 2) in favour of the plaintiff-opp. party. The specific plea of the defendants-petitioners was that the document (Ext. 2) was a forged and fabricated one wherein the signature of defendant No. 1 has also been forged and as such, the said document should be sent for the opinion of the handwriting expert. An application under Order 26 Rule 10(A) C.P.C was filed for sending the same for examination by the handwriting expert. A learned single Judge of this Court as already discussed in Durga Prasad Agarwalla's case (1996 (82) Cut LT 737) (supra) while dissenting from the decision of a learned single Judge in Sabitri Debi's case 11979) 47 Cut LT 266 : (AIR 1979 Orissa 140) (supra) in view of the decision of the Apex Court in AIR 1979 SC 14 has taken the view that even if the Court has the power to compare the disputed writing with the admitted or proved writing to ascertain whether the disputed writing is that of the person who is stated to have written, as a matter of prudence the Court should not venture such comparison by itself and should take the assistance of expert's opinion in arriving at a finding. In Laxmi Rai v. A. Chandravati, AIR 1995 Orissa 131, a Division Bench of this Court held that even though under Section 73 of the Evidence Act a Court is competent to compare the disputed writing of a person with other writing which are admitted or proved, such comparison by the Court is with a view to appreciate properly other evidence available on record. It should however, be too hazardous for a Court to use his own eyes and merely on the basis of personal comparison decide a very vital issue between the parties centering round the handwriting or signature of a person. A similar view has also been expressed by the Apex Court in O. Bharathan v. K. Sudhakaran, (1996) I OLR 290 : (AIR 1996 SC 1140). The Apex Court has laid down that though it is the province of the expert to act as Judge or Jury after a scientific comparison of the disputed signatures with admitted signatures the caution administered by this Court is to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decision to be ultimately rendered. The Apex Court referred and reiterated its decision in AIR 1979 SC 14 which may profitably be quoted hereunder:

“The matter can be viewed from another angle also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudene and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert.”

11. In the case at hand the plaintiff-opp. party undisputed based his claim on the document (Ext. 2), a deed of agreement for sale of the disputed house which has been challenged by the defendants-petitioners herein on the ground that it was a forged and fabricated document wherein the signature of defendant No. 1 has also been forged and accrdingly an application for sending the disputed signature for scientific examination was made. In the circumstances the learned trial Court ought to have as a matter of prudence sent the disputed document for the opinion of the expert after a scientific comparing with the disputed writing with the proved or admitted writing with regard to point of similarity or dissimilarity in the two sets of writing. The Court should not have taken on to itself the task of comparing the handwriting for the proper assessment of the value on the total evidence. Proof of handwriting is in nature of comparison of the admitted and the disputed signature or handwriting. Section 73 of the Evidence Act authorises the Court to compare such handwriting in order to come to its own conclusion, but it is always safe for the Court to take the aid of handwriting expert who were equipped and have the expertise to scientifically compare such handwriting with reasons and place their report which may induce the Court to form its own judgment by its own observation of those materials. In view of the settled position of law in the facts and circumstances of the case when the entire case is based on Ext. 2. The alleged deed of agreement to sale, the learned trial Court ought to have as a matter of prudence thought it appropriate to allow the application and send the document for handwriting expert.

12. In such view of the matter, the impugned order of the learned Civil Judge (Senior Division) is set aside and the matter is remitted back for fresh consideration of the petitioners' application under Order 26 Rule 10(A) C.P.C in accordance with the law and in the light of the observation made in this order. Since the suit is already year-old the learned Civil Judge, should take prompt steps in disposal of the suit expeditiously, preferably within a period of six months from the receipt of the order.

The Civil Revision is thus allowed.

Revision allowed.