1. In a suit for specific performance of contract filed by the plaintiffs/opposite parties, the defendant No. 8.petitioner herein disputed the genuineness of his signature appearing on the agreement for sale which was sought to be enforced in the said suit by the plaintiffs.
2. On an application filed by the said defendant, the disputed signature of the said defendant appearing in the said agreement for sale was referred to the handwriting expert for comparing the same with the admitted signature of the said defendant and for his opinion. The hand-writing expert submitted his report after completing the entire exercise in this regard, before the learned Trial Judge. The defendant No. 8.petitioner is not satisfied with the said report. Accordingly he filed an objection against the acceptability of the said report by pointing out various defects therein. The petitioner herein prayed for consideration of the petitioner's said objection against the acceptability of the said report before the commencement of the trial of the suit.
3. The learned Trial Judge rejected the petitioner's such prayer with the rider that his objection against the said report will be considered in course of peremptory hearing of the said suit.
4. The defendant No. 8.petitioner is aggrieved by the said order passed by the learned Trial Judge on 16th June, 2010 vide order No. 43. Accordingly, he has filed the instant application under Article 227 of the Constitution of India.
5. Heard Mr. Giri, learned Advocate appearing on behalf of the petitioners and Mr. Bhattacharya, learned Advocate appearing on behalf of the opposite parties. Considered the materials on record including the order impugned.
6. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case.
7. It is rightly pointed out by Mr. Giri that once a report is submitted by the Commissioner after holding scientific investigation, in Court, such report will automatically form a part of the record and the same will be a piece of evidence in the suit in view of the provision contained in Order 26 Rule 10A of read with Order 26 Rule 10(2) of the Code of Civil Procedure. Mr. Giri, thus, rightly pointed out that his clients are entitled to examine the handwriting expert in open Court touching any of the matters referred to by him or mentioned in his report or as to his report or as to the manner in which he has made the investigation in terms of the provision under Order 26 Rule 10(2) of the Code of Civil Procedure.
8. Mr. Bhattacharya, learned Advocate appearing on behalf of the opposite parties, submits that such right in fact was not denied to the petitioner by the learned Trial Judge as the learned Trial Judge ultimately held in the impugned order that such objection of the petitioner will be considered in course of peremptory hearing of the suit. Mr. Bhattacharya, thus, submitted that when the suit is fixed for peremptory hearing and his client is scheduled to give evidence in the said suit, examination of his client in the said suit need not be postponed till the consideration of the objection against the hand-writing expert's report submitted by the defendant No. 8.petitioner herein.
9. In fact, an identical issue was decided by the Division Bench of the Patna High Court in the case of Ashutosh v. R.C Dey*, reported in AIR 1953 Pat 133, wherein it was held as follows:
“The matter may also be looked at from the point of view of convenience. If the consideration of the report of the Commissioner is deferred till the hearing of the suit, any defect discovered in the report of the Commissioner would necessitate an adjournment or postponement of the hearing, and the parties will be put to further expenses of an adjourned or postponed trial. It is not, therefore, right to say that the practice arose by reason of mistaken analogy based on the provisions of Rules 13 and 14 of Order 26. It seems to me that the practice arose, because it was convenient to deal with technical objections to the Commissioner's report at ari earlier stage in order to determine if there were reasons to be dissatisfied with the proceedings of the Commissioner and if a further enquiry was necessary or not.”
10. The Division Bench of this Hon'ble Court in the case of Gourhari Das v. Jaharlal Seal, reported in AIR 1957 Cal 90, also held that if any one of the parties prays for examination of the Commissioner in Court, such prayer should be allowed. Inasmuch as, as to what further evidence will be allowed to be adduced, if at all, is to be determined by the Court after the Commissioner has been examined and the judge has formed an opinion as regards the objection raised by the parties.
11. In view of the aforesaid principle laid down by the Hon'ble Patna High Court as well as by this Hon'ble Court, this Court is of the view that the learned Trial Judge ought to have deferred the recording of evidence of the plaintiff till the hand-writing expert is examined with regard to the report.
12. Accordingly, the impugned order stands set aside. The learned Trial Judge is, thus, directed to permit the petitioner to examine the hand-writing expert first and thereafter the learned Trial Judge may proceed with the hearing of the suit after forming an opinion regarding the correctness of the said report.
13. The revisional application is, thus, allowed.
14. Since the suit is pending for disposal even at the trial stage since 2005, the learned Trial Judge is requested to expedite the hearing Of the suit as far as possible.
15. Urgent xerox certified of this order, if applied for, be supplied to the learned Advocate for both parties as early as possible.
B.D
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