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Balaram Panda and anr. Vs. Achutananda Bariha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 309 of 1974
Judge
Reported inAIR1975Ori125
ActsEvidence Act, 1872 - Sections 45
AppellantBalaram Panda and anr.
RespondentAchutananda Bariha and ors.
Advocates:R.C. Patnaik, Adv.
DispositionRevision allowed
Excerpt:
.....notes and mortgage bonds, to the handwriting experts, the court itself losing the custody of the documents receipts containing signatures, the genuineness of which are in dispute are similarly sent to handwriting experts i am clearly of the opinion that this is a highly objectionable and a very bad procedure. it is well known that stamps are examined at nasik in bombay (maharashtra ?). similarly cartridge papers are examined at different centres. if in all cases the experts are summoned to court to examine the stamps or cartridge paper or handwriting or thumb impression in the court premises, the expenses of litigation would be very heavy and the poor litigants would be unable to meet such expenses......is at liberty to do so. heavy expenses are to be incurred, by the parties at the time when the expert is examined as a witness. in some cases the expert may not be examined at all. there are ample instances when a party does not choose to cross-examine the expert. it would therefore not be proper to lay down a rule saying that in no circumstances the documents can be sent to the experts and the experts must be summoned always to examine the documents in the court premises. i am therefore not inclined to accept the aforesaid observations as laying down the correct rule though it is open to the courts in particular cases to direct that the examination would be held in the first instance within the court premises.4. following the practice prevalent in this state i would direct that the.....
Judgment:
ORDER

G.K. Misra, C.J.

1. Balaram Panda (Plaintiff No. 1) is the son of Mst. Amulva Panda (plaintiff No. 2). They entered into an agreement with the defendants for sale of the disputed property for Rs. 5,000/-. The stipulation was that title would pass on payment of consideration. A sale deed was accordingly executed on 31-12-1964, but no consideration was paid. In the written statement the defendants took the plea that on 1-1-1965 the entire consideration was paid and in token thereof a receipt was obtained from the defendants. On 15-7-1974 the plaintiffs filed two petitions to send the alleged receipt to the Director of Printing and Stationery of Orissa Government Press and the revenue stamps used to the Central Stamp Store, Nasik Road for examination and report. The applications were for examination of the cartridge paper as well as the stamps, the plaintiffs' plea being that they were all subsequent to the year 1965. On 5-8-1974the applications were rejected by the learned Subordinate Judge and against this order the Civil revision has been filed.

2. The learned Subordinate Judge rejected the applications relying on a single Judge decision of the Madras High Court in (1968) 2 Mad LJ 48. (Narasimhan v Narayan Chettiar). His Lordship made the following observation :--

'Repeated instances have come to the notice of this Court when applications are lightly made for sending original documents on which suits are filed, like promissory notes and mortgage bonds, to the handwriting experts, the Court itself losing the custody of the documents Receipts containing signatures, the genuineness of which are in dispute are similarly sent to handwriting experts I am clearly of the opinion that this is a highly objectionable and a very bad procedure. Under no circumstances should a Court permit or allow the documents to So out of its custody, as such en evil Practice is attendant with various risks which are too obvious to be mentioned. In the case of enquiries by Commissioners or proceedings by Receivers, who are officers of Court, they are permitted to have access to documents, as they are under the direct control, supervision and jurisdiction of the Courts which appoint them, and there is thus ample safeguard when original documents are taken by the Commissioners or the Receivers. In my view the proper procedure in such cases would be only to permit the handwriting expert to inspect the document in the Court premises in the presence of some responsible officer of the Court, and also if necessary permit the expert to have photographic copies of documents in the presence of the responsible officer of the Court. Any lapse in taking the necessary safeguards in this direction may result in miscarriage of justice, besides creating complications.'

Relying on the aforesaid passage the learned Subordinate Judge rejected the applications of the plaintiffs.

3. With great respect to the learned Judge the aforesaid observation so broadly laid down does not represent the correct legal position. It is well known that stamps are examined at Nasik in Bombay (Maharashtra ?). Similarly cartridge papers are examined at different centres. Handwriting is to be sent to a handwriting expert living at a great distance. If in all cases the experts are summoned to Court to examine the stamps or cartridge paper or handwriting or thumb impression in the Court premises, the expenses of litigation would be very heavy and the poor litigants would be unable to meet such expenses. So farthis State is concerned, the usual practice is to send the documents to the experts and obtain their opinion. If it becomes necessary to examine the expert, any of the parties is at liberty to do so. Heavy expenses are to be incurred, by the parties at the time when the expert is examined as a witness. In some cases the expert may not be examined at all. There are ample instances when a Party does not choose to cross-examine the expert. It would therefore not be proper to lay down a rule saying that in no circumstances the documents can be sent to the experts and the experts must be summoned always to examine the documents in the Court premises. I am therefore not inclined to accept the aforesaid observations as laying down the correct rule though it is open to the Courts in particular cases to direct that the examination would be held in the first instance within the Court premises.

4. Following the practice prevalent in this State I would direct that the documents be sent to experts as prayed for. The impugned order is set aside and the civil revision is allowed. As there is no appearance for the other side there would be no order as to costs.


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