The court has the discretion to appoint a handwriting expert under Section 45 of the Indian Evidence Act to examine a document if it is found to be necessary for the purpose of the suit and for the disposal of an application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956.

PRASENJIT MANDAL, J.

1. THIS application is at the instance of the defendant nos.2(a) to 2(e) and is directed against the order no.87 dated May 27, 2010 passed by the learned Additional Civil Judge (Senior Division), Sealdah in Title Suit No.163 of 2001 thereby rejecting an application under Section 45 of the Indian Evidence Act filed by the defendants.

2. THE plaintiff/opposite party herein instituted a title suit being Title Suit No.270 of 1990 against the predecessor-in-interest of the petitioners and the opposite party nos.2 and 3 for eviction from the premises in suit, as described in the schedule of the plaint. In that suit, the petitioners appeared and filed an application under Section 17(2) and (2A) of the West Bengal Premises Tenancy Act, 1956. While the plaintiff /opposite party was deposing before the Court, a letter was shown to him during cross-examination and she (witness) denied her signature thereon. For that reason, the petitioners filed an application under Section 45 of the Indian Evidence Act and such application was rejected on contest by the impugned order. Being aggrieved, this application has been preferred.

3. MR. Bidyut Kumar Banerjee, learned senior Advocate appearing on behalf of the petitioners, submits that the defendant no.1 was never a tenant under the plaintiff in respect of the suit premises. The predecessor-in-interest of the petitioners and the opposite party no.3 were inducted as tenants by one Appolo Engineering Company in respect of one room at a monthly rental of Rs.150/- payable according to English calendar month and subsequently, the rent was enhanced to Rs.200/- per month. During cross-examination of the plaintiff, a letter was put to the plaintiff for verification and the plaintiff denied her signature on the same. So, the letter is required to be examined by a handwriting expert to have an opinion over the signature of the plaintiff under Section 73 of the Indian Evidence Act but the learned Trial Judge has observed that the document cannot be sent to the handwriting expert as the same was not formally proved and marked exhibit. Such observations of the learned Trial Judge is not correct. He also submits that the learned Trial Judge did not consider at all the provisions of Section 73 of the Indian Evidence Act and as such, the impugned order is required to be set aside.

4. ON the other hand, Mr. Ghosh, learned Advocate appearing on behalf of the opposite party, submits that the document was tendered during cross-examination and whenever it is not admitted, the defendants are required to prove the same and so the Court has rightly rejected the application under Section 45 of the Indian Evidence Act.Therefore, the question that arises for consideration is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on perusal of the materials on record, I find that in a suit for eviction against the tenants, the application under Section 17(2) and (2A) of the said Act of 1956 filed by the defendants was under consideration by the learned Trial Judge. The defendants have adduced evidence in support of their application under Section 17(2) and (2A) of the 1956 Act. Thereafter, the plaintiff was being examined as O.P.W. No.1. At that time, a letter was tendered to the plaintiff during cross-examination and she denied to have signed on that letter. For that reason, the application was filed.

5. NO doubt, as per provisions of Order 8 Rule (1)(4) of the Code of Civil Procedure any document may be tendered on behalf of the defendants during cross-examination of the plaintiff. In the instant case, the said procedure was adopted. Therefore, there is no bar to tender such document for proving the same before the Court. When the signature on the document is denied, there is other mode of proving the same by examining person who received the same or who has acquaintance with the handwriting of the writer of the letter. In the instant case, the co