IN THE HIGH COURT OF SIKKIM AT GANGTOK (CIVIL EXTRA ORDINARY JURISDICTION)

DATED : 21.10.2010

CORAM

HON’BLE MR. JUSTICE P.D. DINAKARAN, CHIEF JUSTICE

Writ Petitions (C) No. 44 and 45 of 2010

Shri Prashant Kumar Goyal, S/o Shri Prem Prakash Goyal, R/o M.G. Marg, Gangtok, P.O. & P.S. Gangtok, East Sikkim; through Constituted Attorney, Shri Prem Prakash Goyal, S/o Late Ganga Sahai Goyal, R/o M.G. Marg, Gangtok, P.O. & P.S. Gangtok, East Sikkim, …Petitioner -versus- 1. Smt. Sogra Khatoon,, W/o Sri Nazir Ahmed Usmani, R/o 31-A, National Highway, Metro Building, Gangtok, P.O. & P.S. Gangtok, East Sikkim. 2. Smt. Durga Khati,, W/o Late Keshar Bahadur Khati, R/o M.G. Marg, Gangtok, P.O. & P.S. Gangtok, East Sikkim. 3. Shri Navin Kumar Khati, S/o Late Keshar Bahadur Khati, R/o M.G. Marg, Gangtok, P.O. & P.S. Gangtok, East Sikkim.

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4. Shri Suresh Mittal, S/o Late Brij Lall Mittal, C/o M/s Variety Corner, M.G. Marg, Gangtok, P.O. & P.S. Gangtok, East Sikkim. …Respondents.

For the petitioner : Mr. N.K.P. Sarraf and Mr. S.K.

Sarraf, Advocates

For the respondent No. 1

: Mr. Karma Thinlay Namgyal, Advocate

JUDGMENT

Dinakaran, CJ

1. These writ petitions are directed against a common

order dated 09.09.2010 made in two interim applications

(unnumbered) in Title Suit No.1 of 2005 on the file of the learned

District Judge, Special Division-I Sikkim at Gangtok which was

originally numbered as Civil Suit No.9 of 2000 on the file of the

learned District Judge, East and North Districts at Gangtok.

2. The writ petitioner is the defendant No. 4 in the said

suit. For the purpose of convenience, the parties are referred to

as per the rank before the trial Court.

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3. The writ petitioner/defendant No. 4 filed the above

two un-numbered applications, namely,

(i) under Order XXVI, Rule 10A (1) read with Sections 75

and 151 of the Code of Civil Procedure, 1908, seeking a

direction for sending all the documents and sample

signatures of defendant No.1 for scrutiny by expert for their

opinion at the cost of defendant No. 4, for proper decision

and adjudication of the suit claim; and

(ii) under Order VIII, Rule 1 A (3) read with Section 151

of the Code of Civil Procedure, 1908 seeking leave of the

Court for producing the following documents at the hearing

of the suit as additional documents namely:-

(a) the joint compromise petition of the contesting

parties in Regular First Appeal No. 4 of 2002 filed

before the High Court of Sikkim at Gangtok is

dated 20.03.2003;

(b) the certified copy of the decree in the said

appeal in RFA No. 4 of 2002 filed by the

defendant No. 4 dated 20.03.2003;

(c) the certified copy of the decree in original of Civil

Suit No. 36 of 1997 dated 17.07.2000;

(d) the sale deed document dated 29.03.2003;

(e) the Challan for money deposited by defendant

No. 4 as land registration fee in the State Bank

of Sikkim dated 15.12.2003;

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(f) the memo No. 2/DCE addressed to defendant

No. 4 from the Sub-Registrar dated 03.01.2004;

and

(g) the seven revenue receipts dated 22.04.2005,

17.04.2006,24.04.2007,21.02.2008,21.01.2009,

21.01.2009 and 10.03.2010.

4. The learned District Judge, Special Division-I

dismissed both the applications by a common order dated

09.09.2010.

5. As the writ petitioner has filed only a single writ

petition against the said common order dated 09.09.2010 made

in two unnumbered applications referred to above, Mr. N.K.P.

Sarraf, learned counsel appearing for the petitioner, seeks the

permission of this Court to pay additional court fee for two writ

petitions against the said two unnumbered applications.

Permission granted. The Registry is granted to number both the

writ petitions accordingly.

6. The learned trial Judge dismissed both the said

applications for the following reasons: -

firstly, the defendant No. 4 is attempting to

protract the proceedings;

secondly, the State of Sikkim does not have

necessary facilities for examining the documents by

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handwriting experts; and the handwriting experts at

Kolkata, which is the nearest State offering such

facilities, are also over burdened and, unable to meet

the demand;

thirdly, the signatures can very well be proved

by the witnesses available; and

fourthly, the defendant No. 4 has not given valid

and just reason for the delay in seeking the

permission to file the above mentioned seven

additional documents at this belated stage, when the

trial has already commenced.

7. Hence these writ petitions.

8.1 Mr. Sarraf, learned counsel appearing for the

petitioner contends that the defendants No. 1 and 2 are set ex-

parte; and the plaintiff herself filed a similar application earlier,

to refer the documents relating to the suit property to the

handwriting experts for their expert opinion and therefore, the

defendant No. 4 has no option except to get the opinion of a

handwriting expert to substantiate his case.

8.2 The reasons that non-availability of the facility of

handwriting expert in the State of Sikkim or that of Kolkata also

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is over burdened with such work, cannot be a justification to

reject the application for granting permission to get handwriting

expert’s opinion of the documents in question.

8.3 It is further contended on behalf of the writ petitioner

that when the defendants No.1 and 2 are set ex-parte, the

defendant No. 4 has no option but to seek for an expert’s opinion

regarding the signature of Defendant No. 1, as it is not prudent

for the defendant No.4 to prove the signature of the Defendant

No. 1 through any other witnesses.

8.4 According to Mr. Sarraf, the leave sought by the

defendant No.4 for producing the said seven documents at the

time of the hearing of the suit involving Order VIII Rule 1A (3) of

CPC ought to have been considered liberally by the learned trial

Judge to meet the ends of justice particularly when the additional

documents proposed to be produced are public documents and

they are related to the suit property, as otherwise, refusal of

leave will result in miscarriage of justice.

8.5 In any event Mr. Sarraf, learned counsel appearing for

the writ petitioner makes it clear that the defendant No. 4 is

always prepared for expeditious disposal of the suit within the

time prescribed by the learned trial Judge.

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9.1 Mr. Karma Thinlay Namgyal, learned counsel

appearing for the respondent No. 1/plaintiff in the suit is not in a

position to convince this Court that the reasons viz.

(i) the lack of facilities in the State of Sikkim for

examining the documents by handwriting experts; or

(ii) the handwriting experts at Kolkata are over

burdened with such work cannot be a justification to reject

the application filed under Order XXVI Rule 10A(1).

Similarly, the learned counsel appearing for the respondent

No. 1/ the plaintiff could not sustain the reasons that the

signatures of the Defendant No. 1 could be proved or

disproved when the Defendants No. 1 and 2 are set ex-

parte.

9.2 However, Mr. Karma Thinlay Namgyal, learned

counsel appearing for the respondent No. 1/plaintiff contends

that the seven documents referred to above are all in the custody

of the defendant No. 4 and, therefore, there is no genuine and

bona fide reason for not taking steps to mark them as additional

documents before the suit was taken for trial. Hence, it is

contended that the writ petitioner/defendant No.4 attempts to

protract the proceedings by these applications.

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9.3 Mr. Karma Thinlay Namgyal, learned Counsel further

contends that by allowing these applications at this belated

stage, the respondent No.1/ the plaintiff is denied an opportunity

to examine her witnesses with reference to these documents.

10. I have given careful consideration to the submissions

of both sides.

11.1 The following issues are raised for my consideration in

these writ petitions:-

(i) Whether the writ petitioner/defendant No. 4 is

entitled to seek direction of this Court to refer

the documents for handwriting experts opinion

under Order XXVI Rule 10A (1); and

(ii) Whether the writ petitioner/ defendant No. 4 is

entitled to mark seven documents as additional

documents at the hearing of the suit.

11.2 Issue No.(i) : Whether the writ petitioner/

defendant No. 4 is entitled to seek direction of this Court to refer the documents for handwriting experts opinion under Order XXVI Rule 10A (1).

11.3 In this regard it is apt to refer Order XXVI Rule 10A

(1) which reads as hereunder:-

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“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.”

(emphasis supplied)

11.4 Concededly the respondent No.1/ the plaintiff herself

took a similar step viz. to refer the signatures of the Defendant

No. 1 for the handwriting experts earlier. As the Defendant No. 1

was set ex-parte, it is not prudent for the writ petitioner/

defendant No. 4 to prove or disprove the signatures of the

defendant No. 1 in the relevant documents with available

witnesses. If that be so, the lack of facilities in the State of

Sikkim for examining the documents through an handwriting

expert or the reasons that the handwriting experts at Kolkata are

over burdened with similar works are not a justification to reject

the application of the petitioner, when the same is required in the

interest of justice. The learned trial Judge had formulated her

own opinion and rejected the application on the grounds viz.

want of facility for examining the documents by handwriting

experts in the State of Sikkim and that overload of work for the

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handwriting experts at Kolkata. In my considered opinion both

the said reasons shall not ___________ demand of the writ

petitioner/defendant No. 4 made under Order XXVI Rule 10A(1).

Hence, the learned trial Judge has failed to exercise her power

vested on her under Order XXVI Rule 10 A (1).

11.5 The above reasons are also fortified by the well settled

principles of law laid down as hereunder: -

(i) In State (Delhi Administration) v. Pali Ram, reported

in AIR 1979 SC 14, the Apex Court has head as hereunder: -

x x x x

“29. 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 prudence 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.

30. It is not the province of the expert to act as Judge or Jury. As rightly pointed out in Titli v. Jones I.L.R. 56 All. 428 : A.I.R. 934 All. 273 the real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the Court or jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with

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regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence.

31. In this connection, the observations made by Hidayatullah, J. (as he then was) in Fakhruddin v. State of Madhya Pradesh (ibid) (AIR 1967 SC 1326) are apposite and may be extracted (at pages 1328, 1329):

Both under Sections 45 and 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in one case and to appraise the value of the opinion in the other case. The comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in a large measure in the disputed writing. In this way, the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.

32. Since even where proof of handwriting which is in nature comparison, exists, a duty is cast on the Court to use its own eyes and mind to compare, the admitted writing with the disputed one to verify and reach its own conclusion, it will not be wrong to say that when a Court seised of a case, directs an accused person present before it to write down a sample writing, such direction in the ultimate analysis, "is for the purpose of enabling the Court to compare" the writing so written with the writing alleged to have been written by such person, within the contemplation of Section 73. That is to say, the words 'for the purpose of enabling the Court to compare' do not exclude the use of such "admitted" or sample writing for comparison with the alleged writing of the accused, by a handwriting expert cited as a witness by any of the parties. Even where no such expert witness is cited or examined by either party, the Court

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may, if it thinks necessary for the ends of justice, on its own motion, call an expert witness, allow him to compare the sample writing with the alleged writing and thus give his expert assistance to enable the Court to compare the two writings and arrive at a proper conclusion.

x x x x (Emphasis supplied)

(ii) In Laxmi Bai v. A. Chandravati, reported in AIR 1995

Orissa 131, the Division Bench of the Orissa High Court held as

follows:-

x x x x

“7. In Kessarbai v. Jethabhai Jivan, AIR 1928 PC 277, it has been held as follows (at p.281):

“It is unsatisfactory and dangerous to

stake a decision, in a case where there is a direct conflict of testimony between parties as to general character of a signature, on the correct determination of the genuineness of the signature by mere comparison with the admitted signatures, especially without the aid in evidence of microscopic enlargements of any expert advice.”

8. The following passage appearing in the judgment of the Supreme Court in the case of State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 is instructive on the point (at p.21 of AIR):

“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 an handwriting expert, the Judge should, as a matter of prudence 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.”

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9. We may state here that under Section 73 of the Evidence Act, a Court is competent to compare the disputed writings of a person with other writings which are admitted or proved to be his writings. Such comparison by the Court is with a view to appreciate properly the other evidence available on record on the question of writings. It would, 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. …………………………..”

(iii) In O. Bharathan v. K. Sudhakaran, reported in AIR

1996 SC 1140, the Apex Court has head as hereunder: -

x x x x

“18. On the peculiar facts of this case, the learned Judge erred in taking upon himself the task of comparing the disputed signatures on the counterfoils without the aid of an expert or the evidence of persons conversant with the disputed signatures. Therefore, the approach made by the learned Judge is not in conformity with the spirit of Section 73 of the Evidence Act. Though the rulings of this Court in State v. Pali Ram, air 1979 sc 14 and Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326, were brought to his notice, the learned Judge proceeded to compare the disputed signatures by himself and decided the issue. ………………”

x x x x

(Emphasis supplied)

(iv) The Orissa High Court in Civil Revision No. 180 of

1999 by order dated 10.11.1999, in Nanda Kishore Mohapatra

and Ors. v. Binayak Mishra and Anr., reported in 2000 (1) OLR

92, has held as hereunder:-

x x x x

“7. Then the question falls for determination is whether the impugned order of rejection of the application for sending the signatures of the testator for hand-writing expert's examination comes within the

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meaning of the expression "case decided" and whether the same can be challenged in a proceeding Under Section 115 of the CPC.

I have gone through the decision so referred by the learned counsel for O.P. No. 1 in Sabitri Debi's case (supra). In this regard my attention is drawn to a decision of this Court in- Durga Prasad Agarwalla v. Binayendranath Banerjee. 82 (1996) CLT 737 in which while deciding a case of similar nature my learned brother P.. Ray, J. took into consideration the ratio of the decision in Sabitri Debi's case (supra) relied upon by the counsel for O.P. No. 1. While deciding the issue in question in the above case, this Court also relied upon the decision in State (Delhi Administration) v. Pali Ram MANU/SC/0189/1978 wherein it was laid down as follows :

"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 hand-writing expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a hand-writing 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."

While rendering the judgment, learned brother P. Ray, J. held as follows:

"The view expressed by a Single Judge in MANU/OR/0038/1979 (supra) has been made without considering the judgment reported in MANU/SC/0189/1978 (supra). The observation made therein was prompted by the consideration that the impropriety or illegality, if any, of the order refusing to send a document for Expert's examination can be raised ill appeal Under Section 105, CPC. In the present case one of the reasons given by the trial Court is that the plaintiffs are not entitled to dispute the genuineness of the disputed signature and writing because the said writing and signature were marked as Exhibits without objection. If that view of the trial Court is sustained, the plaintiffs may not also be allowed to raise same question in appeal. The effect of the impugned order is, therefore, to close their right to dispute the genuineness of the disputed signature and

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writing for good. Secondly, after the decisions in MANU/SC/0189/1978 (supra) and MANU/SC/0416/1992 (supra) it cannot be held that the trial Court adopted the proper and correct approach. In my view the trial Court has acted with material irregularity in exercise of its jurisdiction and such irregularity is likely to occasion a failure of justice and cause irreparable injury to the petitioners. The decision in Sabitri Devi's case is distinguishable."

In my opinion, no contrary view can be taken in this regard. Hence, the ratio laid down in Durga Prasad Agarwalla's case (supra) is squarely applicable to the facts and circumstances of the present case. ………………………”

x x x x

“8. Then the next question that arises for consideration is whether there was any other signature of the testator available with the Court with which the disputed signatures on the Will can be compared by the hand-writing expert. The disputed writing can be examined by the expert as per the contention of O.P. No. 1 only when the admitted writing/specimen writing is available for comparison. In this regard, it is worthwhile to have a glance at Section 73 of the Evidence Act, which provides as follows:

"Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This section applies also, with any necessary modifications, to finger-impressions."

x x x x

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“…………………In order to ascertain the truth or otherwise and in order to adjudicate upon the issue fairly, it is necessary to send the document for examination of a hand-writing expert. In the facts and circumstances of the case and for the reasons stated above, I am of the view that the trial Court has committed material irregularity in exercising its jurisdiction which is likely to occasion a failure of justice and if the impugned order is allowed to stand it shall cause irreparable loss and injury to the petitioner.”

x x x x

(Emphasis supplied)

(v) In Bhagirati Sahu and others v. Akapati Bhaskar

Patra, reported in AIR 2001 ORISSA 185, the Orissa High Court

following the decision of the Apex Court in Kadiyala Rama Rao v.

Gutala Kahna Rao, (2000) 3 SCC 87, has held as hereunder:-

x x x x

“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.……………………………………………………………………..

……………………………………………. 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 (1979) 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

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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 Judge4 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 accordingly 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

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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 authorizes the Court of 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 though it appropriate to allow the application and send the document for handwriting expert.”

(Emphasis supplied)

(vi) In Yash Pal v. Kartar Singh, reported in AIR 2003

Punjab and Haryana 344, the Punjab & Haryana High Court held

as follows:-

x x x x

“4. After hearing the learned counsel, I am of the considered view that this petition is devoid of merit and is liable to be dismissed. Order 26, Rule 10-A of the Code reads as under :

"Order XXVI. Commissions to examine witnesses.

Rule 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

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apply in relation to a Commissioner appointed under Rule 9."

5. A perusal of the aforementioned provision shows that a discretion has been vested in the Civil Court to get any scientific investigation conducted only if it thinks necessary or expedient in the interest of justice. The basic rationale of the provision is that if the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the Court then such an investigation could be permitted. …………………………………….………….”

x x x x (Emphasis supplied)

11.6 However, I am not able to appreciate the prayer

sought for by the writ petitioner/ the defendant No. 4 because

the same is very vague. The writ petitioner has not chosen to

mention specifically the document to be referred to the

handwriting experts.

12.1 Issue No. (ii) Whether the writ petitioner/

defendant No. 4 is entitled to mark seven documents as additional documents at the hearing of the suit.

12.2 In this regard, Order VIII Rule 1A (3) may be referred

to as hereunder:-

“1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.-(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

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(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the plaintiff’s witnesses, or

(b) handed over to a witness merely to refresh his memory.”

(emphasis supplied)

12.3 These documents are certified copies of the Court

orders and public records and related to the suit properties. It is

true that the writ petitioner/defendant No. 4 has not filed these

documents along with the writ petitions but, however, it is not in

dispute that these documents are orders of the Court and public

records and they are related to the suit property.

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Rule 1A(3) says that in such circumstances whether the

defendant fails to produce the documents relied upon along with

the written statements proposed at the relevant point of time

shall not be received in evidence without the leave of the Court.

If otherwise, without the leave of the Court it shall be received if

these documents are marked as additional documents. If

otherwise, it means that without the leave of the Court it shall

not be received if these documents are marked as additional

documents. In other words, it shall be received with the leave of

the Court.

Therefore, the only requirement in law for producing the

documents which sought to be produced in the Court by the

defendant but not produced without the leave of the Court. Such

leave in my considered opinion cannot be exercised rigidly but

particularly in order to meet the ends of justice particularly when

the documents should proposed to be marked as additional

documents, Court order and public documents are related to the

suit property otherwise refusal to grant leave will end in

miscarriage of justice, of course, also appreciate the grievance of

the respondent/plaintiff that he should not be deprived of the

opportunity to examine his witnesses with reference to these

additional documents and to adduce evidence if he is so advised.

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In that view of the matter, I am suffice to permit the

petitioner/defendant to adduce the seven documents as

additional documents and also prayer of the respondent/plaintiff

to examine his witnesses and adduce additional evidence with

reference to these additional documents and also to re-examine

his witnesses if they so advised.

The issue is answered accordingly.

In the result, the order of the learned District Judge,

Special Division-I at Gangtok, Sikkim dated 09.09.2010 made in

two un-numbered applications filed under Order XXVI Rule

10A(1) and under Order VIII Rule 1A(3) are set aside.

The writ petitions are ordered accordingly as indicated

above. No cost.

(P.D. Dinakaran, CJ) 21.10.10

Index : Yes/No

Internet : Yes/No

rsr/jk

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