M.P. Menon, J.
1. Where an expert has already furnished a report about the handwriting and fingerprint in dispute, can the Court, without selling it aside, refer the matter to a second expert This is the question raised. While the petitioners contend that the Court has no jurisdiction to make a second reference without wiping out the earlier proceedings, in view of Order 26, Rule 10 of the Civil Procedure Code, the respondent would urge that a report is only a piece of evidence and that the Evidence Act does not restrict the choice to one only.
2. Section 45 of the Evidence Act makes the opinion of an expert relevant when the Court has to form an opinion as to the identity of handwriting; and under Section 46 facts otherwise irrelevant become relevant if they support or rebut the experts opinion. These two provisions only deal with relevancy, and not with the mode of making expert opinion evidence before the Court. Section 59 provides that all facts except the contents of documents may be proved by oral evidence. Section 60 requires oral evidence to be direct. The opinion of an expert is not an exception to the latter requirement, unless covered by other statutory provisions. Even as regards the contents of documents, they require proof under the provisions of Sections 61 - 66; and when the genuineness of the document itself is disputed, proof under Section 67 is necessary. Normally, therefore, the expert's opinion under Section 45 should be given orally before Court and a mere report or certificate from him cannot be evidence. Any witness can be examined on commission under the provisions of Order 26, Rules 1 to 8 of the C. P. C., and conceivably an expert can also be so examined. Rules 1 and 4, however, use the words 'may issue' and the preponderance of judicial opinion is that the Court has a discretion in the matter. In the case of handwriting experts the trend of case law seems to be against issue of commission to examine an expert as witness.
3. Counsel for the petitioners referred to Rules 9 and 10-A of Order 26 to contend that the reference in this case amounted to issue of a commission under Rule 10-A, and that the report of a hand-writing expert can be treated as evidence without examining him in Court. Rule 9 deals with commission for local inspection and does not directly apply. Rule 10 (2) however provides that the Commissioner's report and the evidence taken by him shall be treated as evidence in the suit even if be is not examined in Court, and Sub-rule (2) of Rule 10-A extends the application of the above principle to reports of Commissioners appointed for 'scientific investigation'. Assuming that the reference made to the handwriting expert in this case amounts to the issue of a commission for scientific investigation and that his report becomes evidence before the Court as contended for, the further question still remains whether a Court is powerless to issue a second commission without setting aside the report of a Commissioner appointed earlier for the same purpose.
4. Rule 10 of Order 26 which relates to the procedure of commissions appointed for local investigation under Rule 9, reads:--
'(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him to the Court.
(2) Report and depositions to be evidence in suit-- Commissioner may be examined in persons.-- The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report or as to the manner in which he has made the investigation.
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.'
Rule 10-A provides:--
'(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.'
5. The argument is that Rule 10 (3) contains a statutory bar against issue of a second commission without setting aside the report of the first, and that this prohibition applies to scientific investigations also, in view of Rule 10-A (2). Rule 10 (3) speaks of the Court getting 'dissatisfied with the proceedings of the commissioner'. Does the word 'proceedings' mean or include the report of the commissioner? Rule 12 (2) dealing with commissioners appointed for examining accounts refers separately to 'proceedings and report' of the Commissioner so that it may be reasonable to infer that 'proceedings' alone in Rule 10 (3) cannot include the 'report' of the commissioner. The dissatisfaction of the Court under this sub-rule must therefore he about the proceedings and not the report; and if that be so, the sub-rule does not touch the report at ail so as to read into it an implied power in the Court to set it aside. Again, what the Court is to do when its dissatisfaction clouds the proceedings of the commissioner is 'to direct such further enquiry' i.e. to direct the same commissioner to continue the 'investigation' or 'enquiry' (under Rule 9 or Rule 10-A, as the case may be) for which he is appointed.
6. Rule 10 (2) prescribes that the report of the commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. When it is so prescribed, can the Court efface it from record by what is often called setting aside the report, in the absence of specific power conferred therefor by the statute itself Sub-rule (3) does not specifically provide for wiping out evidence which is already part of the record; it only contemplates a further enquiry and therefore a further report, which will also become evidence and part of the record by virtue of Sub-rule (2). If the Court is dissatisfied about the proceedings of the first commissioner, it may not attach much probative value to his report in deciding the issue before it; but that is a different thing from saying that the Court can totally ignore the evidence or even delete the report from the record. Rule 14 prescribing the procedure for commissioners appointed to make partition obliges the Court to confirm, vary or set aside their reports; and when the reports are set aside, a 'new commission' can be issued. The language of Rule 10 (3) is different; it does not provide for setting aside a report and issuing a new or second commission. It is not the repository of the Court's power to issue a second commission. That power in matters other than partition has therefore to be traced to the well-known principle that the power to issue a commission is not exhausted with the first exercise thereof. And in the absence of statutory prescriptions like those in Rule 14, setting aside the first report cannot be a condition precedent for exercise of the power to call for another.
7. Mr. Venkitakrishnan for the petitioners politely reminded me that the above approach is almost blasphemous, tested in the light of the weighty authorities cited by him, authorities which according to him, have stood the test of time. I shall therefore proceed to examine them, if only for the reason that no Judge would like to be a lone crusader, though it is not unknown in the annals of law also that what was once considered heresy came to be recognised in course of time as right and rational. Antiquity and inveteracy call for respect, but subject only to reason, where the precedent is persuasive.
8. Ambi v. Kunhikavamma (AIR 1929 Mad 661), the first decision cited, and decided by Odgers and Wallace. JJ., started with the observation :--
'The practice of the issue of a succession of commissions covering the same ground (incidentally, at a ruinous expense to the parties) has been, we are aware, in vogue with Courts in Malabar for many years, but was condemned strongly by a Bench of this Court in 'Thottamma v. Subramaniayyan, AIR 1922 Mad 219'. It is no doubt a simple method by which the Court may evade coming to grips with the case and postpone the trial as long as possible, but we are satisfied that there is no justification for it in the Code of Civil Procedure.'
Assuming that what was said about the Courts and the practice in 'Malabar' in the beginning of this century continues to be valid to this day, that appears to me, with great respect, to afford little clue for construing the provisions of the Code. And as to these provisions their Lordships referred to Rules 9 and 10 of Order 26, saying :
'..... it was not open to the lower Court to run both the commissions at the same time, both covering exactly the same ground. The rule is Rule 10 (3) and lays down that the further enquiry may be ordered when the Court is for any reason dissatisfied with the proceedings of the Commissioner. It may be noted that there is here no provision corresponding to that in Rule 14 (3) under which the Courts may issue a new commission. What is contemplated under Rule 10(3) obviously is a further enquiry by the Commissioner already appointed or by the Court itself. It may be that where the Court is so dissatisfied with the whole proceedings of the Commissioner that it thinks it better to discard the whole record and start afresh, such a procedure would not be contrary to the Code.'
Pausing here for a minute, the view that I have expressed earlier that Rule 10 (3) contemplates only a remittance to the same Commissioner and not the appointment of another, finds support in the above dicta. If Rule 14 (3) alone provides for the setting aside of a report and the appointment of a second Commissioner, and if Rule 10 (3) is to be understood differently, what is meant by saying that under the latter rule the court can 'discard' the first commissioner's report? 'Discard' does not mean setting aside: and 'start afresh' cannot mean issue of a second commission, if the distinction between Rules 10 (3) and 14 (3) is not overlooked. The further observation (in the succeeding paragraph of the decision) that if the first Commissioner's report is wholly useless, the Court can proceed as if it had never been made, does not appear to do full justice to the aforesaid distinction.
9. It is true that Ambi (AIR 1929 Mad 661) was followed by the same Court in Kunhikutty Ali v. Mohammed Haji (AIR 1931 Mad 73) and Panangat Blahayil Karnavan v. Achuta Menon (AIR 1932 Mad 482) and that some of these were referred to with approval in Seetharamacharyalu v. Ranga-nayakamma (AIR 1958 Andh Pra 304), Moidu v. Lekshmi Amma (1968 Ker LT 699) and a few other decisions, to form a formidable array of authorities. In Kunhikutty's case it was even observed that the report of the first Commissioner should be 'wiped out altogether' and that the Court could look into the second report only, when one is called for, which is the same thing as saying that the Court should proceed as if the first report had never been made, as was said in Ambi. But in Shib Charan Sahu v. Sarada Prasad (AIR 1937 Pat 670) a Division Bench of the Patna High Court refused to recognise the Madras view as authority for the proposition that the first Commissioner's report should or could be wiped out and treated as non est before a second commission was issued. Courtney Terrel, C. J. said :--
'In those judgments, the Madras High Court was endeavouring to correct a very bad tendency on the part of the Munsifs of the Malabar districts who appeared to have got into the habit of sending out simultaneous commissions to investigate the same issue of fact and then taking all the Commissioner's reports into consideration and deciding as between these various reports which of them was preferable; and this habit of sending out commissions whether simultaneous or consecutive bad become a nuisance which the Madras High Court very properly desired to check and put an end to. I can find in those judgments no statement of a principle such as is contended for in this appeal. There is nothing in Order 26, Rule 10, Civil P. C. to justify such a contention. It is in the power of the trial Court to send out a second or even a third commission, and when all the materials are before the Court it may at the time of delivering judgment attach very little or no weight to the first Commissioner's report, but this is very far from saying that this amounts to requiring the first report to be wiped out of the record and not considered as evidence. That the argument is entirely unsound is seen on considering what, if it were true, would be the position in the case of an Appellate Court. The first Court's decision on the matter of fact is not final and if the contention were to be accepted, it would prevent an Appellate Court from taking into consideration the first Commissioner's report : this consideration alone is sufficient to demonstrate the fallacy of the argument.'
10. The question whether the first Commissioner's report could be looked into in a case where a second report was called for, directly arose for decision in B. C. Ghose v. T. P. Ghose ((1966) 70 Cal WN 266). P. B. Mukharji, J. approved the Madras view that the Court should not ordinarily appoint a second Commissioner without applying its mind to the satisfactory nature of the proceedings of the first; but beyond that, his Lordship had 'some reservations'. It was observed that the first report was also evidence and could not be wiped out; commission reports had no sanctity except as pieces of evidence for elucidating any matter in dispute. The Patna view in Shib Charan Sahu's case (AIR 1937 Pat 670) was referred to and his Lordship said:--
'I respectfully associate myself with the observations of Courtney-Terrell, C. J. on the interpretation of the Madras decision.'
On the question of wiping out the first report in the context of a second report by another Commissioner, Satyanarayana v. Sarbeswar, ILR (1966) Cut 412 and Chottu v. Gurbhajan (AIR 1972 Punj & Har 265) also preferred the Patna view to that of Madras.
11. In Guptan v. Madhava Menon (1964 Ker LT 453) : (AIR 1965 Ker 95), Velu Pillai, J. was prepared to understand the Madras view only in the manner explained by Patna. And in Moidu v. Lekshmi Amma (1968 Ker LT 699) this Court only said that even if the appointment of a second Commissioner without setting aside the report of the first is an irregularity only, that need not be committed in every case. These two decisions of this Court seem to have made only a passing reference to the Madras and Patna views, without attempting any independent discussion. In fact, most of the decisions noticed above had arisen from cases where commissions were issued under Rule 9 for local investigations. Whether a scientific investigation under Rule 10A or the opinion of exprerts under Section 45 of the Evidence Act would stand on the same footing or not was not considered.
12. Rules 10A to 10C of Order 26 were introduced into the Code when Section 75 was amended by Act 104/76. In the case of Commissions under Rules 10B and 10C for performing ministerial acts and for selling movables), the provisions of sub-rule (2) insist, in each case, that Rule 10 shall apply to such commissions also; but when it comes to Rule 10A, the relevant Sub-rule (2) makes such application only 'as far as may be'. This relaxation may be indicative of an awareness on the part of the legislature itself that the procedure relating to scientific experts requires flexibility, as they do not often agree on all matters. Very recently we have been hearing such experts speaking in different voices as to the possible effect on ecology if a hydroelectric project is to be set up in the Silent Valley. Divergent views were expressed by engineers about the possible methods for strengthening the Mullap-periyer Dam. Why should anyone insist that the court can have the assistance of only one scientific expert at a time? The proceedings of one expert may not be wholly useless; still the Court may consider another report helpful. Of course, Rule 10A is new, and mine cannot be the last word on its scope; but the matter is at least not in the region of binding precedents.
13. Turning to the question of handwriting experts, reference was made to the Ramalingam v. Ramanathan (AIR 1978 Kant 65) where the Court applied the usual rule against issue of a second commission. The commission there was under Order 26, Rule 9, and not under Rule 10A; and the scope of Rule 10 (3) was also not discussed with reference to its language or decided cases. Mr. N. Subramonian for the respondent, on the other hand, cited Narayana Kekunnaya v. Derinjathaya (1961 Ker LT 960) where a calligraphic expert of New Delhi had given a report favourable to the plaintiff and the defendant wanted another expert at Madras to look into the matter again. This request was objected to on the ground that the first report had not been set aside. Madhavan Nair J. did not uphold the objection. His Lordship said:--
'The weight of such evidence tendered by an expert depends upon the soundness of the reasons given in support of it. If he gives no data in support of his opinion, the opinion deserves only to be rejected. It then follows that the report of an expert as to his opinion is not legal evidence unless he appears in Court as a witness and is examined by both parties in respect of his opinion. In an enquiry as to the identity of a handwriting, the Court has to be told the peculiar prevailing character of the handwriting concerned which distinguishes it from the handwriting of every other person, the correctness of which will have to be tested by cross-examination by the opposing party. It is possible then to weigh the opinions of experts who may appear to testify to the same on the strength of the data and the reasons that each expert witness may give in support of his opinion. Suffice it to say for the present that experts are just like other witnesses and may be called in any number by the parties concerned.'
And the above view was followed by Janaki Amma, J. in Koragan v. Koran (1978 Ker LT 872).
14. The above discussion leads to the conclusion that whether it be under Order 26 of the Code or under Section 45 of the Evidence Act, there is no prohibition as such against making a second reference to a handwriting expert without setting aside the report of the first; the Court has a discretion in the matter. To say so is not to handover to the alcoholic the key of the distillery and to permit the trial Courts to issue commissions galore, hut only to distinguish a matter of practice from a matter of law. The discretion is there, of course, to be used with circumspection.
15. And now to the case on hand. Faced with an adverse report from one handwriting expert, the plaintiff (respondent herein) applied under Section 151 of the Code for getting a report from another expert; and the Court allowed the application on the only ground that there was no 'legal bar'. It does not appear that the plaintiff had set out sufficient reasons in support of his application; and even if he had, the Court did not advert to any. This is not an instance like the one considered by Madhavan Nair J. in Narayana Kekunnaya (1961 Ker LT 960) where the second reference was made at the instance of the defendant for rebutting the expert opinion tendered in favour of the plaintiff. Under the circumstances, while cautioning the Court below that the mere absence of a 'legal bar' is no ground for exercising its discretion in every case, I would allow the impugned order to stand, but on condition that irrespective of the result of the suit, the plaintiff-respondent would bear the entire expenses in connection with the second report.
Ordered as above. No costs.