IN THE HIGH COURT OF SIKKIM AT GANGTOK

(CIVIL EXTRA ORDINARY JURISDICTION)

DATED : 21.10.2010

CORAM
HONBLE 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
-versus1. 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.

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
No. 1

Mr. Karma
Advocate

respondent

Thinlay

Namgyal,

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.

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;

(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

Permission granted.

the

said

two

unnumbered

applications.

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

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

permission

to

for

file

the

the

delay

above

in

seeking

mentioned

the

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 exparte; 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

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

reject the application for granting permission to get handwriting
experts 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 experts 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.

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 exparte.

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.

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:-

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

10

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: -

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

11

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

12

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
(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:-

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 sheetanchor 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.

13

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: -

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
(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

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

14

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 handwriting 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

15

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.

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
fingerimpressions."

16

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
(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:-

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 Agarwallas case (1996 (82)
Cut LT 737) (supra) while dissenting from the decision
of a learned single Judge in Sabitri Debis 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

17

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
experts 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

18

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:-

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

19

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

11.6

x
(Emphasis supplied)

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.
mention

specifically

the

The writ petitioner has not chosen to

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.

20

(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

plaintiffs 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.

21

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.

22

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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