Mr. William Fernandes and Others vs Mr. Francis Simon Cabral (since deceased through his legal representatives Mr. Nigel Crucifix Ralph Cabral and Mr. Osric Terence Cabral), Mrs. Ina Ivy Cabral and Willam''s Beach Retreat Pvt. Ltd.

A.P. Lavande, J.—Heard Mr. Usgaonkar, learned Counsel for the petitioners and Mr. Bhobe, learned Counsel for the respondents.

Rule. Rule is made returnable forthwith.

By this petition under Article 227 of Constitution of India, the petitioners challenge the order dated 17th August, 2010 passed by Civil Judge, Senior Divison, Margao in Special Civil Suit No. 117/2002/A dismissing the application for issuance of summons to Handwriting Expert.

The respondents filed a suit against the petitioners seeking relief of declaration and injunction. The defendants contended that notice dated 1st June, 2002 issued by the defendants was received on behalf of Company by one Mr. Anil Das, which position was disputed by the plaintiffs. The original notice was sent to the Government Examiner of questioned documents at Hyderabad for examination to find out whether the signature on the notice was of Mr. Anil Das or not.

In the suit, the plaintiffs examined seven witnesses. Thereafter, the defendants led evidence of two witnesses. Thereafter, defendant Nos. 1 and 2 filed an application dated 31st July, 2010 praying for issuance of summons to Shri Y. Surya Prasad, who had given opinion. The application was opposed by the plaintiffs. By the impugned order, the Trial Judge dismissed the application on two grounds; firstly on the ground that in the event said witness is examined, serious prejudice would be caused the plaintiffs and secondly on the ground that the report given by the examiner was cryptic. The defendants have filed the present petition challenging the said order.

Mr. Usgaonkar, learned Counsel for the petitioners submitted that serious prejudice would be caused to the petitioners in the event they are not permitted to lead evidence of expert since the burden of proving the fact that notice was received by Anil Das on behalf of the Company, is on the defendants. He further submitted that the opinion of the expert was obtained by the Court upon the request of the plaintiffs and the plaintiffs having chosen not to examine the expert, the defendants are entitled to examine the said witness. Mr. Usgaonkar further submitted that the finding given by the Trial Judge for rejecting the application are unsustainable in law. He, therefore, submitted that the impugned order be quashed and set aside.

Per contra, Mr. Bhobe, learned Counsel for the respondents supported the impugned order and placed reliance upon Order XVI, Rule 1, C.P.C. and submitted that since the defendants had not mentioned the name of the expert in the list of witnesses submitted by them, they are not entitled to examine the said witness without showing sufficient cause for such permission. In support of his submissions, he relied upon the judgment of the Apex Court in the case of Lalitha J. Rai Vs. Aithappa Rai, .

I have considered the rival submissions and perused the record and the judgment relied upon.

It is not in dispute that the burden to prove that the notice was received by Mr. Anil Das on behalf of the Company is on the defendants. It is also the admitted fact that the Trial Court itself referred the document to the expert for examination and got the opinion at the initial stage. No doubt, the plaintiffs chose not to rely upon the said document obviously because the same was against the plaintiffs. It is the case of the plaintiffs that they did not examine another expert Mr. M.M. Kakkar, who had opined that the signature on the said acknowledgement was a freehand forgery.

It is well settled that the provisions dealing with the examination of witnesses, production of documents etc. are procedural provisions and they have to be liberally construed. No doubt, a party is not entitled to examine the witness not named in the list of witnesses in the event the same is going to cause prejudice to the other side. In the present case, it is the case of the plaintiffs that they did not examine Mr. Kakkar since the defendants did not cite the name of the examiner in the list of witnesses filed by them. However, the fact remains that the evidence of expert is relevant for deciding the issue involved in the suit.

As stated above, the Trial Court rejected the application primarily on the two grounds, firstly on the ground that serious prejudice would be caused to the plaintiffs since they did not choose to examine expert on their behalf and secondly, on the ground that the opinion was cryptic.

In so far as the first ground is concerned, any prejudice that would be caused to the plaintiffs by permitting the application can be taken care of by permitting the plaintiffs to examine witnesses on their behalf. In so far as the second ground is concerned, the same is patently unsustainable in law. The fact that the report is cryptic cannot be a ground for rejection of summons to the witness and the expert when called in the Court is entitled to depose in support of his opinion. Therefore, the second ground on which the Trial Court has dismissed the application is patently unsustainable in law.

In so far as the judgment in the case of Lalitha Rai is concerned, the same also does not advance the case of the plaintiffs. In the said case, the Trial Court and High Court had refused to allow the party to examine the witness, whose name was not mentioned in the list. The Apex Court reversed the order considering that there was bonafide mistake and that trial had not commenced.

In view of the above, the impugned order dated 17th August, 2010 is quashed and set aside. Consequently, the application dated 31st July, 2010 is allowed subject to the petitioners paying costs of Rs. 5,000/- to the respondents. The costs shall be deposited within a period of one week from today in the Trial Court. Liberty to the respondents to withdraw the same after they are deposited. The respondents are also permitted to lead evidence of their expert Shri M.M. Kakkar or any other evidence only pertaining to the issue of signature of Mr. Anil Das on the notice dated 1st June, 2002. It is expressly made clear that both the parties would not be permitted to lead further evidence on any other issues. Needless to mention that in the event the parties examine the witnesses as permitted, opposite party will be entitled to cross-examine the said witnesses.

Interim relief dated 3rd September, 2010 stands vacated. Parties shall appear before the Trial Court on 21st October, 2010 at 2.30 p.m.

Rule is made absolute in aforesaid terms. Writ Petition stands disposed of accordingly.