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2016 Supreme(Cal) 242
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
DEBI PROSAD DEY, J.
Jashoda Chowdhury - Petitioner
Vs.
Tarak Chowdhury & Ors. - Respondents
C.O. No. 1531 of 2015
Decided On : 10-02-2016
Advocate Appeared:
For the Petitioner: Mr. Hiranmoy Bhattacherjee, Mr. Champak Ghosh, Mr. Mitusree Boral Ghosh
For the Respondents: Mr. Swapan Kumar Mallick, Mr. Priyabrata Ghosh
The court has the discretion to order a scientific investigation, including the comparison of thumb impressions, under Order 26 Rule 10A CPC, when the genuineness of a document is disputed and expert opinion is necessary to resolve the issue.
Headnote:
EVIDENCE ACT - Comparison of Thumb Impression - Order 26 Rule 10A CPC - Court's Discretion to Order Scientific Investigation - Genuineness of Thumb Impression Disputed - Expert Opinion Sought.
Fact of the Case:
In a probate case, the petitioner challenged the grant of probate to the opposite parties, alleging that they obtained it by fraud and without serving proper notices. The petitioner claimed that the acknowledgment due card containing her left thumb impression, which was used as proof of service, was forged. The opposite parties applied to compare the thumb impression on the card with the petitioner's admitted thumb impressions.
Finding of the Court:
The court held that the trial court was justified in ordering the comparison of thumb impressions under Order 26 Rule 10A CPC. The court noted that the genuineness of the thumb impression was disputed and that expert opinion was necessary to resolve the issue. The court also observed that the petitioner's resistance to the comparison would lead to an adverse presumption against her.
Issues: 1. Whether the trial court erred in ordering the comparison of thumb impressions without admitting the acknowledgment due card as an exhibit. 2. Whether the trial court had the jurisdiction to refer the thumb impression for comparison under the Indian Evidence Act.
Ratio Decidendi: 1. The court held that the acknowledgment due card was part of the record and had been marked for identification. Therefore, it was not necessary to formally admit it as an exhibit before ordering the comparison. 2. The court held that the trial court had the jurisdiction to order the comparison under Order 26 Rule 10A CPC, which allows the court to issue a commission for scientific investigation in certain circumstances.
Final Decision: The court dismissed the petitioner's application under Article 227 of the Constitution of India, holding that the trial court's order was valid and that the comparison of thumb impressions was necessary to determine the genuineness of the acknowledgment due card.
Debi Prosad Dey, J.
Radharani Chowdhury since deceased executed a Will during her lifetime and appointed Tarak Chowdhury and Sambhu Chowdhury (opposite parties of this application) both sons of Panna Lal Chowdhury as executor of the said Will. Probate was duly granted in Act 39 case being No. 13 of 1996 in favour of the aforesaid opposite parties. Probate in respect of the Will of Radharani Chowdhury was granted in favour of Tarak and Sambhu Chowdhury in Act 39 case No. 13 of 1996.
2. Smt. Jashoda Chowdhury wife of Late Charu Chowdhury initiated a revocation case being case No. 164 of 2004 against the aforesaid opposite parties for revocation of the Probate granted in Act 39 case being No. 13 of 1996 on the ground that such Probate was obtained by the opposite parties without serving any summons/notices/intimations upon the petitioner and the opposite parties have obtained such Probate by practicing fraud upon the learned trial Court. On inspection, the petitioner came to know that one Acknowledgment Due Card was incorporated in the Probate proceeding showing forged/manufactured left thumb impression of the petitioner said to have been attested by one Narayan Chowdhury.
3. The opposite parties have filed an application under Order 26 Rule 10A read with Section 151 of the Civil Procedure Code with a prayer for comparing the left thumb impression of the petitioner namely Smt. Jashoda Chowdhury appearing in the Acknowledgment Due Card with her admitted left thumb impression appearing in the two vokalatnamas filed in Court on 08.12.2004 and 19th July, 2010 as well as left thumb impression of Jashoda appearing on the deposition sheet of her own evidence before this Court and on the petition of Act 39 case filed by her. Learned trial Court ultimately allowed said application and directed the Director, Finger Print Bureau, CID, DIB, Bhawani Bhavan to compare the said left thumb impression of Smt. Jashoda Chowdhury and to submit report.
4. Being aggrieved by and dissatisfied with such order Smt. Jashoda Chowdhury (herein after referred to as petitioner only), has filed this application under Article 227 of the Constitution of India solely on the ground that the alleged left thumb impression appearing in acknowledgment due card has not been admitted in evidence as exhibit and accordingly learned trial Court was not justified in referring the said document for comparison without admitting the said document as exhibit in evidence.
5. Learned Counsel Mr. Hiranmoy Bhattacherjee appearing on behalf of the petitioner contended that no notice/summons was ever served upon Jashoda Chowdhury while granting Probate in favour of the opposite parties and the alleged left thumb impression appearing in the acknowledgment due card has been manufactured/forged by the opposite parties.
6. Mr. Bhattacherjee further contended that learned trial Court committed mistake in referring the said left thumb impression appearing in the acknowledgment due card along with admitted left thumb impression of the petitioner to the expert for comparison since the alleged left thumb impression appearing on the acknowledgment due card has not yet been admitted in evidence as exhibit. According to the petitioner, learned trial Court should not have referred the left thumb impression appearing on the acknowledgment due card since the said document has not yet been admitted in evidence.
7. Learned Advocate Mr. Swapan Kumar Mallick appearing on behalf of the opposite parties has however supported the order being No. 44 dated 13.03.2015 passed by learned trial Court on the ground that the entire defence of the opposite parties as well as the case of the petitioner would be decided by the report of the expert regarding the genuinity of the left thumb impression of the petitioner appearing in the Acknowledgment Due Card. In support of his contention Mr. Mallick has referred the decisions reported in AIR 1979 SC 23 (Jetha Ram v. the State of Rajasthan) and AIR 1981 MP 69 (Smt.
