T. Soundarajan vs Valiyammal and Others

Honourable Mrs. Justice Aruna Jagadeesan

In this Civil Revision Petition, the order passed by the learned Additional District Judge (FTC-II) Trichy dated 24.2.2011 has been challenged by the 2nd Defendant in OS.NO.15/2005 appointing an Advocate Commissioner for the purpose of getting an expert opinion by producing the disputed documents and other documents containing the admitted signature for comparison of the signature found in the disputed documents. The facts very briefly are:-

a. The Respondents 2 to 8 have instituted a suit in OS.NO.87/1994 on the file of the Sub Court, Tiruchirappalli which has been transferred and renumbered as OS.No.15/2005 on the file of Fast Tract Court No. 2, Tiruchirappalli for partition of the suit properties into two equal shares and allot one such share to the Plaintiffs and for separate possession and also for rendition of accounts.

b. It is the case of the Plaintiffs that the owner of the property, namely, Rajamani Ammal executed a Will dated 1.11.1992, bequeathing the properties in favour of the Plaintiffs herein. The 1st Respondent/1st Defendant has filed a Written Statement resisting the claim of partition and disputed the genuineness of the Will and pleaded that it is a forged one. When the case was posted for trial, the 1st Defendant had filed an application in IA. No. 298/2009 under Order 26 Rule 10(A) and Section 151 of CPC to appoint an Advocate Commissioner to take the original Will dated 1.11.1992 executed by Rajamani Ammal for scientific investigation by a Handwriting Expert attached to Forensic Laboratory at Madurai for the purpose of comparison of the signatures of Rajamani Ammal with her admitted signatures found in the plaint filed in OS. No. 1215/1984, vakalat filed by Rajamani Ammal in the said suit and the original registered sale deed dated 31.5.1981 executed by Rajamani Ammal and Valliammal in favour of one Ilanjiyam. The Respondents/Plaintiffs 1, 3 to 9 resisted the said application on the ground that the Trial Court by itself can compare the disputed signature and the opinion of an expert is a weak piece of evidence and it cannot be relied upon. Further, it is objected on the ground that the application is filed very belatedly.

c. The Trial Court after elaborately setting out the reasons has allowed the application in IA.No.298/2009 made by the 1st Defendant for appointment of an Advocate Commissioner to produce the disputed as well as the admitted documents before the Handwriting Expert for getting an opinion by comparison of disputed signature with that of the admitted signature.

Mr.K.S.Sankar Murali, the Learned Counsel for the Revision Petitioner strenuously contended that the learned trial judge having not come to a conclusion that the disputed signature in the Will dated 1.11.1992 cannot be compared with the signature found in the documents by exercising the powers conferred u/s 73 of the Indian Evidence Act, it is not necessary for the court to embark upon any investigation being done by an Handwriting Expert. It is contended by the Learned Counsel that it is not impossible or impracticable for the Trial Court to compare the disputed signature with the admitted signature and therefore, the court cannot seek the assistance of an expert. The Learned Counsel submitted that the Trial Court has not followed the ratio laid down by this Court in the case of Irulappan Vs. Meenakshi Sundaram (1998-III-CTC-140) which is based on the Go.MS. No. 194 Home (FS) Department dated 28.1.1986 wherein it is held that under no circumstances, the court should send the documents for examination by the expert from out of its custody.

On the other hand, Mr.R.Vijayakumar, the Learned Counsel for the Respondents placing reliance on the decision of this Court reported in 2010-1- MWN-Civil-413 (S. Chinnathai Vs. K.C. Chinnadurai) and 2009-2-MLJ-665 (S.M. Narasingam and others Vs. S.M. Sridharan and others) submitted that the aforesaid judgement cited by the Revision Petitioner has been rendered without taking into consideration of the Order 26 Rule 10A of CPC and such a provision was not available at the time of rendering the orders. The Learned Counsel contended that the court cannot reject the application filed under Order 26 Rule 10A of CPC only on the ground of delay until or unless it comes to the conclusion that the application lacks bona fides or the same has been filed with the sole view to protract the proceedings. The Learned Counsel also relied on the decision of the Honourable Supreme Court reported in O. Bharathan Vs. K. Sudhakaran and another (1996-2-SCC-704) wherein the Honourable Supreme Court has held that the court itself should not compare the disputed signature without the assistance of any expert.

After hearing the submissions made by the Learned Counsel for the parties and after going through the detailed order passed by the Trial Court, I am of the considered view that this Civil Revision Petition is devoid of merits and is liable to be dismissed.

Order 26 Rule 10A of CPC reads as under:-

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

A perusal of the aforesaid provision shows that a discretion has been vested in the civil court to get an scientific investigation conducted 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. In such an event, the civil court instead of invoking its power u/s 73 of the Evidence Act, shall have to exercise its power under Order 26 Rule 10A of CPC.

It has to be pointed out as held by this Court in 2010-1-MWN- Civil-413 that the judgement rendered by this Court in Irulappan Vs. Meenakshi Sundaram (1998-3-CTC-140) has been rendered without taking into consideration of the provision under Order 26 Rule 10A of CPC and when such provision was not available at the time of rendering the orders.

In a recent judgement reported in S.M. Narasingam and others Vs. S.M. Sridharan and others (2009-2-MLJ-665), the Madurai Bench of the Madras High Court has held that a document can be taken to the expert to verify in the presence of the Commissioner. In fact, in the judgement reported in Utham Prabhat Industries by Partner Vs. P. Subramaniam, Proprietor, Sridevi Products, etc. (1996-1-LW-255) this Court has clearly held that a document can be taken by a Commissioner, being an Officer of the Court for the purpose of getting the report from an expert. The said principle has been affirmed by the Honourable Supreme Court in the judgement reported in Damara Venkata Murali Krishna Rao Vs. Gurujupalli Satvathamma (2009-1-MLJ-1359-SC). Hence, this Court is of the opinion that there is no bar for the Court to order the appointment of a Commissioner for the purpose of taking the documents to an expert so as to enable him to get the report in view of the powers granted under Order 26 Rule 10A of CPC.

At this juncture, it is also relevant to point that the civil court cannot refuse to exercise the power under Order 26 Rule 10A of CPC merely on the ground of delay. In the judgement reported in Damara Venkata Murali Krishna Rao Vs. Gurujupalli Satvathamma (2009-1-MLJ-1359-SC), the Honourable Supreme Court was pleased to hold that the court has to consider the facts and circumstances of each case for ordering the application filed under order 26 Rule 10A of CPC and such an application cannot be rejected merely because the same has been filed belatedly.

The Trial Court has taken into consideration the facts and circumstances of the case and has allowed the application, which in my opinion has rightly exercised the power conferred under Order 26 Rule 10A of CPC. I do not find any material irregularity or improper exercise of jurisdiction by the Trial Court so as to warrant interference by this Court in this revision and this Civil Revision Petition is accordingly dismissed. No costs. Consequently, the connected MP is closed. It is brought to the notice of this Court that the Advocate Commissioner has submitted the report along with the expert opinion and documents taken by him for that purpose. It is needless to mention here that the proviso to Order 26 Rule 10A of CPC states that the provisions of Rule 10 of this Order shall apply in relation to a Commissioner appointed under this Rule as they may apply in relation to a Commissioner appointed under Rule 9. The report filed by the Advocate Commissioner shall become part of the record of the case.