Calcutta High Court
Dr. Narayan Mukherjee vs Smt. Krishna Dey (Mukherjee) on 22 August, 1994
Equivalent citations: (1996)2CALLT28(HC)
JUDGMENT
1. The husband/petitioner filled Matrimonial Suit No. 47 of 1992 in the 4th Court of the learned Additional District Judge at Alipore, South, 24-Parganas, against the wife/caveator/opposite party for a decree for divorce on the ground of cruelty and the same was decreed ex-parte on 19th January, 1993.
2. Subsequently, the wife/caveator/opposite party filed an application under Order IX Rule 13 read with Section 151 of the Code of Civil procedure together with an application under Section 5 of the Limitation Act for setting aside the aforesaid ex-parte decreed on condonation of delay, alleging inter alia, that no summons of the suit was served upon her and the ex-parte decree was obtained by the husband/petitioner by suppression of summons and by forging the signatures of the wife/caveator/opposite party on the service return of summons and also on the acknowledgement card and she had no previous knowledge of the suit prior to 29th April. 1993 and 30th April, 1993, and the same gave rise to Misc. Case No. 7 of 1993.
3. In the said Misc. Case, the wife/opposite party filed an application for appointment of a handwriting expert for comparing and/or examining the alleged signatures of the wife/opposite party on the service return of summons and on the acknowledgement card, with her admitted signatures appearing on the vakalatnama and the application under Order IX Rule 13 of the Code of Civil Procedure or with any of her admitted signatures. The said application was opposed by the husband/petitioner by filling written objection alleging inter alia, that summons of the suit were duly served upon the wife and instead of appointing a handwriting expert, the court could itself compare the signature appearing on the acknowledgement card and the service return of summons with the admitted signatures of the wife/opposite party, under Section 73 of the Indian Evidence Act. During cross examination of the wife, as per the request of the learned Advocate of the husband/petitioner, the wife's signatures were taken both in Bengali and in English in open Court for the purpose of comparing with the alleged signatures of the wife appearing on the acknowledgement card and the service return of the summons.
4. The learned judge after comparing the admitted signatures of the wife taken in open court with the alleged signatures on the acknowledgement card and the service return, came to a finding that the alleged" signatures were vitiated by fraud and the wife had actual knowledge of the ex-parte decree in the third week of April, 1993, and the application for setting aside the ex-parte decree was filed in time, and by his Order No. 33 dated 13th July, 1994 allowed the said Misc. Case by setting aside the ex-parte decree and restoring the Matrimonial Suit to its original file and number. Against the said order of the learned judge, the husband/petitioner has filed the present revisional application in this Court.
5. Mr. Shyama Prasanna Roy Chowdhury, learned Senior Advocate appearing on behalf of the husband/petitioner, contends inter alia, that instead of examining and/or comparing the signatures of the wife/opposite party by the court itself, the court should have appointed an expert to do the job, as it is always a risky affair on the part of the court to assume the character of an expert and hence the impugned order should be set aside. In support of his contention, Mr. Roy Chowdhury also refers to the judgment of the Supreme Court in
6. Mr. Haradhan Banerjee, learned advocate appearing on behalf of the wife/opposite party, however, contends inter alia, referring to the provisions of Sections 73 of the Indian Evidence Act, that the court has the power to compare and/or examine itself the admitted signatures of a person with his disputed signatures on record without calling for a handwriting expert and as such, in the present case, the act of the court below in comparing the admitted signatures of the wife taken in open court with her disputed signatures on the acknowledgement card and the service return of summons is quite legal and valid as per the provisions of section, 73. Mr. Banerjee also contends, that since in paragraph '16' of the objection filed by the husband to the application filled by the wife for appointment of a handwriting expert, the husband himself had stated that the court could very well compare and/or examine the signatures appearing on the acknowledgement card and the return of the summons with the admitted signatures of the wife as per the provisions of Section 73 of the Indian Evidence Act, it does not lie in the mouth of the husband in the present revisional application to allege any more that the court below should not have assumed the role of handwriting expert in comparing and or examining the admitted signatures of the wife on record with her disputed signatures on the acknowledgement card and the service of returns, and as such the findings of the court below should not be disturbed and/or interferred with in revision.
7. The contentions of Mr. Banerjee, in the facts and circumstances of the case, appear to be will founded.
8. Before considering the scope of Section 73 of the Indian Evidence Act, it will be appropriate to have a look at the legislative back ground of the said provision, which has been very lucidly narrated by the Supreme Court in the following passages of its decision in the case of State (Delhi Administration) v. Pali Ram, :-
"Before considering the scope of Section 73, it will be appropriate to have a look at the legislative background of this provision, Section 73 like many other provisions of the Indian Evidence act, is modelled after the English Law of Evidence as it existed immediately before the enactment of the Indian Evidence Act, is modelled after the English Law of evidence as it existed immediately before the enactment of Indian Evidence Act in 1872.
The English Law on the subject, as amended by the English Acts of the years 1854 and 1865, was substantially the same as incorporated in Section 73 of the Indian Evidence Act. Section 48 of the English Act II of 1855 was as follows:
"On an enquiry whether a signature, writing or seal is genuine, any undisputed signature, writing or seal of the party whose signature, writing or seal is under dispute may be compared with the disputed one, though such signature, writing or seal be on an instrument which is not evidence in the cause."
section 48 was repealed and the Criminal Procedure Act, 1865 was passed by British Parliament, Section 8 of that Act, which still holds the field, provides:
"Comparison of disputed writing with writing proved to be genuine: Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witness respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute."
This section applies in both Civil and Criminal Courts by virtue of Section 1 of the Act.
Apart from this section, it was well settled that the Court in the case of a disputed writing was competent to obtain an exemplar or specimen writing. In any case, the Court was competent to compare the disputed writing with the standard or admitted writing of the person in question. The position, as it obtained after the passing of the Criminal Procedure Act 28 and 29 Vict. C. 18, has been summed up by Taylor as follows :-
"Under the Statutory Law, it seems clear ..... that the comparison may be made other by the witnesses acquainted with the handwriting or by witnesses skilled in deciphering handwriting, or, without the intervention of any witnesses at all, by the jury themselves (Cobbett v. Kilmlnistei), or in the event of there being no jury, by the Court ..... It further appears that any person whose handwriting is in dispute, and who is present in Court, may be required by the Judge to write in his presence, and that such writing may be compared with the document in question. (Deed Devine v. Wilson (1855), 10 Moo PC 502, 530 : 110 R.R. 83 : Cobbett v. Kilminister (1865) 4 F & F 400-(See Taylor on Evidence by Johnson & Bridgman, Vol. 2, Paragraphs 1870 and 1871, Page 1155)."
9. The Supreme Court then comparing the above provisions with Section 73 of the Indian. Evidence Act, further observed :
"It will be seen that the first paragraph of Section 73 is, in substance, a combined version of Section 48 of the English Act II of 1855 and Section 8 of the English Criminal Procedure Act, 1865. The second paragraph of Section 73 is substantially the same as the English Law condensed by Taylor in the above quoted portion of paragraph 1871.
Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person :
(i) By an admission of the person who wrote it.
(ii) By the evidence of some witness who saw it written.
These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are :
(i) By the evidence of a handwriting expert, (Section 43).
(ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Section 47).
(iii) Opinion formed by the Court on comparison made by itself, (Section 73).
All these three cognate modes of proof involve a process of comparison. In mode (1) the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar form in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned, In the case of (iii), the comparison is made by the court with the sample writing or exemplar obtained by it from the person concerned.
A sample writing taken by the Court under the second paragraph of Section 73, is in substance and reality, the same thing as "admitted writing" within the purview of the first paragraph of Section 73, also. The first paragraph of the section, as already seen, provides for comparison of signature, writing, etc. Purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (section 45) or by one familiar with the handwriting of the person concerned (section 47) or by the Court. The two paragraphs of the section are not mutually exclusive. They are complementary to each other.
10. However, in paragraph No. 29 of the said judgment, the Supreme Court disapproved the method of comparing signatures or writings by the Court itself in the following manner :
"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 prodence 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. Jenkins C.J. in the well-known case of Barindra Kumar Ghosh and Ors. v. The Emperor, 14 CWN 1114, referring to two earlier decisions namely, Sreemutty Phoodee Bibi v. Gobind Chunder Roy, 22 WR 272 and R. v. Harvey, 11 Cox, C.C. 546(1869), also disapproved the method of comparing the writings by the Court itself without the aid of a handwriting expert and his Lordship's observations run as under :-
"In this case we are told that a comparison was made by the learned sessions judge out of Court after the conclusion of the arguments, but whether with the assistance of the Assessors or not does not appear. If there was no submission of this question to the Assessors, it may be a question how far this was not an irregularity. The result has been that on a comparison so conducted the learned sessions judge, without in all cases observing the precise terms of the section, has held certain writings to be those of one other of the accused without having invited or heard arguments from their Counsel on this point. I cannot think this was a proper course to pursue; a comparison of handwriting is at all times as a mode of proof hazardous and inconclusive, and especially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of Counsel and the evidence of experts. In sreemutty Phoodee Bibi v. Gobind Chunder Roy (15), it was said by the Court that "a comparison of signature is a mode of ascertaining the truth which ought to be used with very great care and caution."
In this case no expert has been called to assist the Court, and not because no expert was available : there is, it is well known, a Government expert as to handwriting and certain of the documents in this case bear a stamp which shows that they have been submitted to him. It is true that the opinions of experts on handwriting meet with their full share of disparagement at times, but at any rate there is this use in their employment that the appearances on which they rely are disclosed, and can thus be supported or criticised, whereas an opinion from by a Judge in the privacy of his own room is subject to no such checks. And that the aid of an expert may be of value was clearly the opinion of so distinguished a Judge as Mr. Justice Blackburn who in R.v. Hervey (16) refused to allow comparison to be made without the help of experts........"
12. Sir Asutosh Mookerjee, J. in the case of Sreemutty sarojini v. Hari Das Ghosh, 26 CWN 113 also took the same view approving the above observations of Jenkins C.J. and observed inter alia, as follows :-
"............ It is true that the opinions of experts on handwriting meet with their full share of disparagement at times. But at any rate there is this use in their employment, that the appearance on which they rely are disclosed, and can thus be supported or criticised, whereas an opinion formed by a Judge in the privacy of his own room is subject to no such check............"
13. The above observations of Jenkins C.J. and Mookerjee, J., have been repeated in 16 WR 16 PC; ILR 10 Calcutta 1051; AIR 1937 Calcutta 92 ; ; AIR 1937 Patna 146; AIR 1960 Mysore 220; ; A.I.R. 1961 Punjab 76; and and also in some other cases.
14. Reference may also be made to the following observations of Lord Atkin in AIR 1928 PC 277 (Kessarbhai v. Jethabhai Jivan, at page-28) :-
" But there Lordiships are unable to come to the same conclusion as the members of the Appellate Court. They would have thought It unsatisfactory and dangerous in any event to stake a decision in such a case as this on the correct determination of the genuineness of the signature by more comparison with admitted signatures.especially without the aid of evidence of microscopic enlargement or any expert advice."
15. The caution administered by Jenkins, CJ., by Mookerjee, J. and also by Lord Atkin as quoted above, and the deprecatory observations made therin, that it is hazardous to prove the identity of the disputed authorship of the man by the method of comparison by the court itself, have been by some courts to support the view that the court should not use it own eyes to compare handwritings without the aid of microscopic enlargement or expert evidence. At the same time, however, superior courts, have on many occasions, observed that expert opinion on handwriting must always be received with great caution and it would be unsafe to rely upon it without substantial corroboration from evidence internal and external. The Supreme Court, in the case of Shashi Kurner Benerjee and Ors. v. Subodh Kumar Banerjee and Ors., also observed inter alia, as such, in para 21 of the said decision in the following manner :
".......................... Besides it is necessary to observe that expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence...................."
16. Moreover, superior courts also in many cases, themselves, have compared the signatures on record in order to come to a decision. It is all the more curious to note, that though Lord Atkin in AIR 1928 Privy Council 277 disapproved the method of comparing the writings by the Court itself without the aid of an expert as quoted above, in the same case, their Lordships of the Privy Council compared the signatures, as would be evident from the next observations of Lord Atkin on the same page:-
"But their Lordships have also themselves carefully compared the endorsements with the admitted signatures, and they, are unable to feel the certainty which was expressed by the Chief Justice. The signatures appears to be written with different ink and possibly at different times and though the purported signatures of the firm bears a close resemblance to some of the genuine examples produced, notably to a signature in a letter of authority addressed to Jethabhai himself, the purported signature of Kesserbai is by no means convincing."
17. The Privy Council did not only compare the disputed signature of a person with his admitted signature in AIR 1928 Privy Council 277, but also in its subsequent decision in Gennamaneedi Madhavayys and Anr. v. Gennamcncedi Achamma (since decessed) and Anr. . In that case, no expert evidence was adduced to prove the genuineness of the handwriting, but nevertheless, Sir Madhavan Nair observed at page 329 of the report :-
"After carefully examining the various signatures, their Lordships are not satisfied that the disputed signature does not look like the accepted signatures of the deceased."
18. The Privy Council similarly was "strongly impressed" by comparison of signatures in Manindra Chandra Laha v. Mahaluxmi Bank Ltd. as per observations of Lord Thankerton at page 483 on Section 73 of the Evidence Act and comparison of signatures thereunder.
19. In the case of Sri Sri Sii Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat and Ors., , Supreme Court observed inter alia, that the court was unable to compare the signatures as they were not on the record. In Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors.(supra), which was a case relating to the genuineness of a will, the Supreme Court itself compared various signatures on the disputed will and the various writings therein before declaring the disputed will to be a genuine one, as would appear from the following observations of the Supreme Court in the said decision :-
"............. All that can be said after a review of all the signatures from 1943 is that as the testator's age increased his writing become more shaky, though as we have said before, there are examples of shaky signatures before 1946 and also examples of not so shaky signature after 1945.
This conclusion is in our opinion borne out by the various signatures on the will and the various writings therein which were made to fill in the blanks after the main body of the will had been written in January to March, 1943. The full signature at the foot of the will does show some tremor but there are a number of signatures on the mergin of the will which are not full and some of them do not show much tremor though some do.
"............................... On the whole therefore it seems to us that it has not been established by the evidence of the expert that the signature at the bottom of the will could not be made on August 29, 1943 as deposed to by the attesting witnesses. In the circumstances of this case, the view taken by the District Judge of the evidence of the expert, namely ,"it would be indeed dangerous to base a decision upon such inconclusive data " appears to us to be correct. We hold therefore on a review of the entire evidence that due execution and attestation of the will in dispute has been proved as alleged by the propounders and so the appellants are entitled to probate with a copy of the will attached. ..................."
20. K.C. Das Gupta, J. in the Division Bench decision of this Court in the case of Fazaluddin Mondal v. Panchanan Das, also observed inter alia as follows :
" ......... I think it proper to mention also that I am unable to agree with the view which found favour with Guha J., that the learned Judge was wrong in comparing the signature on Ext. 1 with the admitted signature of the defendant on other documents. It is true, if there was no evidence before the court as regards the genuineness of the signature, the court could not, in law, rely on its own examination of the signature to supply the evidence because the learned judge could not treat himself as an expert. I am unable to find anything in principle or authority which bars the judge of facts from using his own eyes and looking at the admitted signature along with the disputed signature in deciding whether the evidence that has been given as regards the genuineness of the document should be believed or not."
21. The Supreme Court in the case of State of Gujarat v. Vinay Chandra Chhota Lal Pathi AIR 1967 SC 778 also acknowledged the Court's power to compare signature and observed inter alia, as follows :
"............ A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in a certain document merely on his basis of comparison, but a court can itself compare the writings in order to appreciate the other evidence produced before it in that regard ........... "
22. Even Appellate Courts are quite as competent to apply the test of comparison of writings by themselves as courts of first instance, as was held in the case of Sreemutty Phoodec Bibi v. Gobind Chunder Roy (Supra). On this point, the following observations of the Supreme Court in Fakhruddin v. The State of Madhya Pradesh AIR 1967 SC 1326 are also very much relevant :-
"Mr. Kohli said that these cases establish that the evidence of the handwriting expert is worthless and the Court cannot compare the writing for itself and the only possible evidence should have been of one who either saw Fakhruddin write or was familiar with his writing. We had sent for the writings which are disputed and the writings with which they were compared with a view to observe for ourselves the similarities and differences between the two and to verify whether the conclusions of the handwriting expert were proper or not. Mr. Kohli contended that this was not open to us. We do not agree."
23. The disparaging observations of Jenkins, C.J., Mookherjee, J. and Lord Atkin as referred to above about the comparison of handwritings by the judge, taken at their best, however, mean no more than this, that ordinarily unaided by expert evidence, it is risky and indecisive and as was observed in Sreemutty Phoodee Bibi v. Gobind Chunder Roy (supra), the method of comparison of writings "ought to be used with very great caution." On question as to identity of handwriting, comparison by the court is, however, not only sanctioned by law, but specially provided in Section 73, and a judge is well within his rights, if oppressed by the paucity or unsatisfactory nature of the evidence tendered, he feels the necessity of applying the test of comparison with his own eyes to settle a question of the disputed authorship of handwriting as has been observed by our High Court in the case of Khijiruddin in and Ors. v. Emperor AIR 1926 Calcutta 139 (D.B.), that where other evidence is not available and the handwriting has not been proved by independent evidence to be handwriting of a particular person, it is necessary to have recourse to the provision of Section 73 to see whether by comparison it can be determined whether the document was written by that person or not.
24. Therefore, notwithstanding all that has been observed in the reported cases, it is quite clear that Section 73 gives an express authority to the court to compare handwritings. Where a case depends upon a comparison of handwritings, the court is competent to use its own eyes for deciding the question. In such a matter the court cannot accept the expert's evidence like automation.
25. The scope and ambit of Section 73 of the Evidence Act has been dealt with by P. B. Mukherjee, J., in an unparallel manner in the case of Biseswer Poddar v. Nabadwip Chandra Poddar and Anr., 64 CWN 1067 (D.B.) at page 1075 and 1076 :
"Judge is said to be blind. A hoary tradition of immemoral antiquity has made proverbial the now familiar picture of the ideal Judge with bandaged eyes. We are urged by the learned counsel for the appellant to hold this means that a Judge left to himself cannot use his eyes provided light chooses to descend upon them from the scintillating evidence of a handwriting expert of from the effulgent brilliance of the arguments at the Bar. Be spectacled as most Judges are, some of their opthalmic deficiencies are patent indeed, but I do not think they make the judges that blind as the argument contends. The virtue of judicial blindness has been overemphasised and misunderstood........
My reading and interpretation of Section 73 of the Evidence Act as whole lead me to conclude that this comparison mentioned there can and is intended to be made by the Court. In fact, the words for the purpose of enabling the court to compare" leave little room for doubt on this point. To my mind it makes no material difference in this interpretation on the ground that these words appear in the second paragraph of Section 73 of the Evidence Act dealing with the Court's power to direct a person present in court to write for the purpose of comparison because the Court to be permitted to compare in such case and not in any other such as mentioned in the first paragraph of that section will be to make an unreasonable distinction ......
While the Statute did not make the Judge blind, some of the learned Judges have preferred to invoke self-induced blindness. The Law on this point has oscillated between, severe criticism of the handwriting experts who had been condemned as talking in terms of pseudo-science on a subject which is not science, such as, pen pressure, pen scope, pen pause, pen presentation, pen lift, hand movement, joinings pivotal change, understroke, cross bar and loops of many kinds and whom Judges have described as available on hire to speak in favour of the party who has paid as per Jessel M.R. in Abinger Ltd. v. Ashton, LR 17 Equity 373-4, and on the other the Judicial attitude that whenever there is a disputed question in respect of handwriting, it is dangerous and unwise for the Judge to use his own eyes without the evidence of the handwriting expert.
As I read the case law and the sections. I am unable to subscribe to the view of Judjcial blindness that a Court is prevented by Law to use its own eyes either in addition to handwriting expert's evidence on the point or even in the absence of such expert evidence on the point."
26. His Lordship then referring to the observations of Jenkins, C.J., in Barindra Kumar Ghosh v. Emperor (supra), as quoted above, observed inter alia, as follows at page 1078 :
"The well-known observations of Jenkins. C.J. in Barindra Kumar Ghosh v. Emperor (1909) ILR 37 Calcutta 467 on this point have been quoted repeatedly in support of the theory that a Judge must remain blind and not use his eyes except by the light of the handwriting expert.........
These observations again, I do not find, impose blindness on the Judge. They do not support the view that the Judge cannot use his own eyes without the aid of the handwriting expert. What is said here is that it is a "hazardous and inconclusive" course and that it should be used only with "very great care and caution." What was intended to be a rule of salutary caution is now attempted to be converted into a rule of law. It is against this conversion, I protest."
His Lordship further observed at page 1079 and 1080 of the decision as follow :
"On the interpretation of the relevant sections of the Evidence Act and on a review and examination of the case law on the subject, I am satisfied that there is no legal bar to the Judge using his own eyes to compare disputed signature with admitted signatures even without the aid of any evidence of any handwriting expert. There are also other reasons to support this conclusion. What happens in those cases of disputed signatures where neither party calls any handwriting expert or where no handwriting expert may be available as in some of the courts in the districts? Is the Judge bound to call a handwriting expert as a court witness? He can do so if he wants to. But I do not think he can be forced to do so or that he is obliged to do so, if he feels that he can on the evidence of other witnesses on the point and by comparison of signatures come to his own conclusion on the point so long as the court bears in mind the caution that such comparison is almost always by its nature inconclusive and hazardous. That is why apart from such comparison we have considered other cogent and compelling circumstantial factors in this appeal in coming to the conclusion of genuineness of the disputed signature. Secondly, Law Report are replete with cases where handwriting experts have been called only to be disbelieved by the Court. I have therefore never understood why the Judge cannot be allowed to use his faculty of vision without first receiving light from the evidence of handwriting expert unless it is oddly suggested, that Court has a duty to be first misguided by handwriting expert in order to enable it to come to a right decision on the disputed signature."
27. we also cannot resist the temptation to quote the unique observations of his Lordship made in the penaltimate paragraph of the said decision which run as under :
"I am, therefore, unable to accept the theory of Judicial blindness curable and redeemable only by the light of the handwriting expert. I do not conceive justice in that sense is blind or should be blind. Physiologically opticians tell us that every one has s blind spot. So indeed have judges. But that need not make them any more blind than they must be by nature's ordinance. Indeed, pitifully enough justice is not always all-seeing as it should be and no one is more conscious than the judges themselves of the limitation of their vision. The judicial lights are no longer the pole star to guide the erring steps of the benighted pilgrims in the present wilderness in the Rule of law. But nevertheless I am reluctant to extinguish and take away from the eyes of the Judge, that still small flickering light, that remnant of a fading vision, although I confess much has out of those discerning eyes ever since Gilvert and Sullivan sang the Lord Chancellor's song in lolanthe to say :-
"The Law is the true embodiment Of everything that's excellent It has no kind of fault or flaw And I, my Lords, embody that Law."
28. Financial, we think the following observations of the Supreme in the case of Murarilal v. State of Madhya Pradesh AIR 1980 SC 531 at 537 will set at rest all doubts regarding the power and even the duty of the Court under Section 73 of the Indian evidence act.
"The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain wheher a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as a sometimes said we are afraid it is one of the hazard's to which judge and litigant must expose themselves whenever it become's necessary. There may be cases where both sides call experts and the voices of science are head. There may by cases where neither side calls an expert, being ill able to afford him. In all such cases it becomes the plain duty of the court to compare the writings and come to its own conclusion, The duty cannot be avoided by recourse to the statement that the court is not expert. Where there are expert opinions, they will aid the court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without our evidence, we may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. The State of Madhya Pradesh were cases where the court itself compare the writings."
29. The conclusion is, therefore, that the court is within its right to compare writings by itself as per the provisions of Section 73 of the Indian Evidence Act, without the aid of a handwriting expert, if occasion so arises and/or situation so demands.
30. So far as the factual part of the case is concerned, it would be quite clear from paragraph 16 of the objection filed by the husband against the wife's application for appointment of a handwriting expert, which is quoted below, that the husband had himself submitted to the Jurisdiction of the court to get writings compared by the court itself without the aid of an expert as per the provisions of Section 73 of the Indian Evidence Act :-
"16. Your petitioner states that the petitioner herself received the summons and notice of the Matrimonial Suit by putting her signature but to comaflege the circumstances filed the purported application for expert opinion which is also per se illegal and after thought. This learned court can very well examine the signatures appearing in the A/D card and return of the summons with one admitted signature of the petitioner under Section 73 of the Indian Evidence Act. Accordingly, your petitioner denies the statements made in paragraph 16 of the said application as redundant and uncalled for."
31. Further it appears that during cross examination of the wife, at the request of the learned advocate for the husband, the wife had put her signatures both in English and in Bengali in open Court and from the impugned order, it appears that the learned judge after comparing carefully the said admitted signature of the wife, with her alleged signatures on the service return of summons and on acknowledgement card which were marked as exhibits 1, A/1, and 1/1 respectively came to the following conclusion.
"Admittedly, the service return of the summons in question as well as the A/D card contain the purported signatures as "Krishna Mukherjee" (Vide Exhibit-1) as well as Exhibit-A/1 respectively). It appears from the evidence on record that during cross examination of the learned lawyer of the opposite party, the signatures of the petitioner were taken both in English and in Bengali in the open Court for the purpose of examining those signatures for forming an opinion as to the identity of those signatures by the court in view of Section 73 of the Indian Evidence Act.
31. Accordingly, in view of provision of Section 73 of the Indian Evidence Act, as a court of law, I have scrutinised those purported signatures appearing on the A/D card and service return of the summons with the admitted signatures, of the petitioner taken in the open court as well as put on the vakalatnama and the application under Order IX Rule 13 of the Code of Civil Procedure. In course of examining the same, it appears to me that even on plain and apparent looking, it becomes crystal clear that the purported signatures appearing on the A/D card as well as on the S.R. of summons are not at all identical with the admitted signatures of the petitioner. The very style of writing, slanting, alignment, gap etc. clearly gives out the impression, even to a lay man that those two sets of signatures are not identical and not put by the self-same person. Thus I have no hesitation to hold that the purported signatures appearing on the A/D card and the S.R. of summons in question were vitiated by fraud.
32. Sitting in revision, therefore, we find no reason to interfere with the order under challenge, as in our view, neither the learned Trial Judge has acted illegally and/or with material irregularity in passing the impugned order, nor he has passed the said order in excess of his jurisdiction vested in him by law.
33. The revisional application thus fails and is dismissed accordingly without, however, any order as to costs.