Orissa High Court
Natabar Behera vs Batakrishna Das on 27 June, 1986
Equivalent citations: AIR1987ORI7, AIR 1987 ORISSA 7, (1986) 62 CUTLT 613 (1986) 2 ORISSA LR 137, (1986) 2 ORISSA LR 137
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT P.C. Misra, J.
1. The plaintiff in Title Suit No. 292/77 pending in the Court of the Addl. Subordinate Judge, Cuttack is the petitioner in this revision. He filed the aforesaid suit for a declaration of title, confirmation of possession or in the alternative for recovery of possession in respect of the properties described in Schedule 'B' of the plaint. A prayer for permanent injunction and removal of encroachment from a portion of the suit properties was also made in the said suit. At one stage of the suit the plaintiff-petitioner relied on two rent receipts which were challenged by the defendant-opp. party. On the ground that the same were forged. The opp. party applied for sending the said documents to a handwriting expert for a comparison with his admitted signatures and for opinion in the matter. Both parties agreed that the documents should be sent by the Court to an expert outside the State without disclosing the name of the expert to the parties obviously to avoid any scope for malpractice. The Court sent the disputed signature along with the admitted signatures to one C.T. Bhanagay of Nagpur who in his report sent to the Court opined that the disputed signatures had been forged. The plaintiff-petitioner challenged the correctness and validity of the report on the ground that the mandatory provisions of Order 26, Rule 18 of the Civil P, C. (hereinafter referred to as 'the Code') having not been complied with, the same could not be accepted in evidence without formal proof. The trial Court overruled the said application and accepted the report in evidence by the impugned order. This revision was placed before the Hon'ble Mr. Justice B.K. Behera who by his order dt. 2-1-1984 referred it to a larger Bench as it involves an important question of law.
2. The petitioner in this revision contended that examination of a handwriting or signatures does not involve any scientific investigation and, therefore, Order 26, Rule 10-A of the Code is not attracted. It has been further argued that assuming for the sake of argument that it is so, the provisions of Rule 18 of the said Order having not been complied with, the report is nullity and the same could not be accepted in evidence under the provisions of Rule 10 of the said Order. Learned counsel appearing for the opp. party on the other hand strenuously contended that examination and comparison of handwritings by an expert is a scientific investigation within the meaning of the said Rule and in that view of the matter the opinion of the handwriting expert shall be governed by the procedure laid down in Rule 10 thereof which provides that the said report when submitted to the Court shall be evidence in the suit and shall form part of the record. It has also been contended by the learned counsel for the opp. party that the provisions of Order 26, Rule 18 of the Code which requires that the Court shall direct the parties to the suit to appear before the Commissioner in person or by their agents or lawyers are not mandatory in nature so far as the scientific investigation by an expert is concerned and at any rate the parties having agreed to send the signatures to an expert outside the State without disclosing his identity to the parties it shall be deemed that they have waived the strict compliance of Rule 18 of the said Order. Thus the legal questions which arise for consideration are : (1) whether the report of a handwriting expert would come within the meaning of scientific investigation, thereby making Rule 10-A of the said Order applicable; (2) whether the report of the handwriting expert which does not comply the provisions contained in Order 26, Rule 18 of the Code will still be evidence in the suit within the meaning of Rule 10 of the said order; (3) whether in the facts and circumstances of the case where the parties require that the Court should send the matter to an expert without disclosing his identity, it can still be said that non-compliance of Rule 18 would render the report a nullity.
3. Section 75 of the Code defines and limits the power of the Court to issue commission, the detail provisions of which has been set forth in Order 26. The said section was amended by Act 104 of 1976 and as a consequence of the said amendment new Rules 10-A to 10-C have been inserted in Order 26 of the Code, In Clauses (e) to (g) of Section 75 which were inserted by the aforesaid amendment, the power of the Court to issue commission has been widened. Clause (e), so introduced empowers the Court to issue commission to hold a scientific, technical or expert investigation when it is needed for determination of any issue before the Court. Rule 10-A of Order 26 provides that 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 is 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. Scientific examination means ascertainment by observation and experiment critically tested, systematised and brought under a set of principles. Comparison of a disputed signature with the admitted ones involves specialised skill based on study. It, therefore, comes within the scientific investigation and cannot be done by a layman without having the scientific knowledge and specialisation on the subject. The handwriting experts for the purposes of comparison of the handwritings take enlarged photographs of the disputed and the admitted writings and examine the same by application of recognised principles and by critical tests which in most cases cannot be conveniently conducted before the Court. Hence the genuineness of the signatures in the rent receipts having been disputed, the Court has rightly issued a commission for investigation by an expert.
4. The next question that comes up for consideration is as to whether Order 26, Rule 18 of the Code so far as it relates to the investigation under Rule 10-A is mandatory. In this connection it may be noted that Order 26, Rules 1 to 8 relate to commissions to examine witnesses and Rules 9 and 10 relate to commissions for local investigations. Rules 11 and 12 relate to commissions to examine accounts and Rules 13 and 14 deal with commissions to make partitions. The general provisions relating to commissions have been embodied in Rules 15 to 18 of the said Order. As already stated in 1976 three new rules, namely Rules 10-A, 10-B and 10-C were inserted immediately after Rule 10. Rule 10-A deals with commissions for scientific investigation. Rule 10-B deals with commissions for performance of ministerial act and Rule 10-C deals with commission for sale of movable properties. Order 26, Rule 18 which was a part of the original Code and has not undertaken any amendment in 1976 reads as follows : --
"18. Parties to appear before Commissioner.-- (1) Where a commission is issued under this Order, the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders.
(2) Where all or any of the parties do not so appear, the Commissioner may proceed in their absence."
There was a State amendment applicable to Orissa to Sub-rule (1) of Rule 18 providing that in addition to the direction to the parties to appear before the Commissioner, the Court can also direct the party applying for examination of witnesses or in its discretion any other party to the suit, to supply the commissioner with a copy of the pleadings and issues. In all the commissions contemplated under the Code prior to the amendment in 1976, i.e. commission for examination of witnesses or for local investigation or to examine accounts or to make partition, presence of the parties during the execution of the commission is essential as the evidence recorded by the Commissioner and his report when submitted become part of the record and shall be treated as evidence in the suit as per the express provisions of the Code. The scope for issue of commission has been expanded by the insertions of Clauses (e) to (g) in Section 75 and Rules 10-A to 10-C in Order 26 of the Code. Of these investigations newly introduced in 1976, we do not find any justification for issue of notice to the parties to appear before the Commissioner in person or by their agents or lawyers, so far as the commissions for scientific investigation and for performance of ministerial act are concerned. In scientific investigation or for performance of ministerial acts parties have no function to play before the Commissioner nor examination of witnesses before the Commissioner is necessary in such cases. The investigations required to be made by a handwriting expert would involve examination of the disputed writing in comparison with the admitted ones by his own instruments, knowledge and study of the science and there is no scope or necessity for any communication between the expert and the parties in such matters. Similarly where any question arising in a suit involves the performance of any ministerial act, the Court may, in fit cases, issue a commission to such person as it thinks fit directing him to perform that ministerial act and report thereon to the Court. Thus, the presence of the parties may not be permissible or desirable in the case of softie specified scientific investigations or in the matter of performance of ministerial acts.
"5. True it is that prior to the amendment of 1976 there were conflicting views as to; whether Rule 18 of Order 26 is mandatory in nature. Some High Courts such as Madras, Orissa, and Patna vide AIR 1934 Mad 548 (Modalvelasam Latchan Naidu v. Rama Krishna Ranga Rao Bahadur Bobbili Samasthanam), AIR 1960 Orissa 66 (Labanya Debi v. Govinda Malik), and AIR 1962 Pat 211 (Smt. Mandera Mukherjee v. Sachindra Chandra Mukherjee) took the view that appointment of a Commissioner without notice by the Court to the parties in violation of O, 26, Rule 18, C.P.C. cannot be accepted in evidence whereas the High Court of Allahabad in the case reported in AIR 1973 All 148 (Suraj Pal v. Smt. Meera) held that notice issued to the parties by the Commissioner, though not by the Court, is,-sufficient compliance of Order 26, Rule 18. A critical analysis of those decisions would not help the solution of the question before us inasmuch as those were cases relating to commission either for examination of witnesses or for local investigation, and not for any scientific investigation, as such a provision was absent in the Code prior to the amendment of the Code in 1976. The purpose of notice to the parties under Rule 18 is to give them an opportunity to make representation of their respective cases before the commissioner or else the Commissioner will proceed ex parte in the matter of recording of evidence or in making local investigations or in partitioning the properties. In the matter of scientific investigation or for performance of ministerial act, the parties are not required to make representation of their respective cases before the Commissioner nor the Commissioner is required to consider any such representation if made before him. His job is confined to the performance of the act directed by the Court and no further. In this view of the matter we are unable to accept the contention of the learned counsel for the petitioner that Rule 18 of Order 26 is mandatory so far as the scientific investigation by a Commissioner under Rule 10-A is concerned.
6. It has been strenuously urged by the learned counsel for the petitioner that Rule 18 of the Code having not undergone any change in the year 1976 when several provisions of the Code were amended and/or substituted or replaced it should be taken that the legislature intended that Rule 18 of the Order 26 as it stood prior to amendment should equally apply to the new provisions inserted in Rules 10A to 10-C. The golden rule in the construction of statutes, as has been repeatedly indicated in several authoritative decisions, is that in the first instance, the grammatical sense of that is to be adhered to. If that is contrary to, or inconsistent with any expressed intention, or declared purpose or the statute, or if it would involve any absurdity, repugnance, or inconsistency, the grammatical sense must then be modified, extended, or abridged so far as to avoid such inconvenience, but no further. After giving the plain grammatical meaning to the words in Rule 18 of Order 26 we find that it would lead to a sort of manifest absurdity and opposed to reason for which the same should be avoided. We would, therefore, conclude that the provisions of Order 26, Rule 18 of the Code cannot be held to be mandatory so far as scientific investigation contemplated in Rule 10-A is concerned.
7. Assuming that the provisions of Rule 18 are mandatory so far as it relates to commissions under Rule 10-A it may be kept in mind that in the facts and circumstances of this case it would not render the report of the Commissioner inadmissible for non-compliance thereof inasmuch as the parties themselves represented to the Court that a Commissioner of a different State should be appointed without disclosing his identity to the parties. Thus the parties by agreement wanted the Court to issue a commission without any notice to them inasmuch as the Court could not have issued notice to the parties to appear before the Commissioner without disclosing his identity. We would, therefore, hold that in the facts and circumstances of this case the report of the Commissioner cannot be held to be inadmissible in evidence for want of notice under Rule 18 of the Code.
8. Under Section 45 of the Evidence Act, 1872, when the Court has to form an opinion upon a point of foreign law or science or art or as to the identity of the handwriting or finger impressions, the opinion upon that point of the persons specifically skilled in such subject is relevant. Thus the opinion of handwriting expert is relevant under Section 45 of the Evidence Act. It is has been held by the Supreme Court in AIR 1967 SC 778 (State of Gujarat v. Vinaya Chandra Chhota Lal Pathi), AIR 1967 SC 1326 (Fakhruddin v. State of Madhya Pradesh), AIR 1980 SC 531 (Murarilal v. State of M.P.) and AIR 1973 SC 2200 (Ram Narain v. State of Uttar Pradesh) and in various other decisions that the Court can form an opinion in respect of handwriting either on the opinion of the expert or on the opinion of a person acquainted with the handwriting or by comparison by the Court itself, and the Court is evidently not bound by the expert's opinion which is merely an evidence in the case and that should be considered along with other evidence and circumstances appearing in a particular case. Order 26, Rule 10A Sub-rule (2) provides that the provisions of Rule 10 of the said Order, 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. Thus it makes the report of a handwriting expert admissible in evidence by application of Rule 10 of the said Order. The report thus admitted in evidence is merely a piece of evidence which is not conclusive and is liable to scrutiny by the Court before any reliance is placed on the same.
9. In the result, we do not find any merit in this revision which is accordingly dismissed. In the facts and circumstances of this case, we make no order as to costs.
D.P. Mohapatra, J.
I agree.