The court established that the refusal to appoint a handwriting expert constitutes a jurisdictional error as expert evidence is essential for determining the authenticity of documents in a money suit.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The defendant in a money suit has preferred the present revisional application against an order whereby the petitioner’s application under Order XXVI Rule 10A of theCode of Civil Procedure , seeking the appointment of a handwriting expert to compare the handwriting of the husband of the petitioner in Exhibit-1, a purported challan, with another document which was produced by the plaintiff/opposite party himself and was admittedly executed by the husband of the petitioner, was refused.

2. Learned counsel for the petitioner submits that the learned Trial Judge resorted to complete conjecture and surmise in pre-judging the evidentiary value while turning down the said application.

3. It is contended that the report of the handwriting expert, if obtained, shall be the best piece of evidence to ascertain the dispute as to whether the purported challan bearing Exhibit-1 was written by someone else than the husband of the petitioner or it was actually written by the husband of the petitioner.

4. Learned counsel appearing for the plaintiff/opposite party opposes the prayer and submits that the document-in-question has already been marked as Exghibit-1 and, as such, the admissibility of the same cannot be raised at this subsequent stage when the evidence is over and arguments are about to commence.

5. Learned counsel places reliance on the judgment of Javer Chand and others v. Pukhraj Surana , reported at AIR 1961 SC 1655 in support of his proposition.

6. Learned counsel next places reliance on Section73 of the Indian Evidence Act and submits that in order to ascertain whether a signature or writing is that of a person by whom it purports to have been made, any such signature, etc., 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, etc., has not been produced or proved for any other purpose. It is submitted that if the court itself compares the handwriting of the husband of the petitioner,with that of the Exhibit-1, the opposite party shall not have any serious objection.

7. However, the appointment of expert was rightly turned down by the learned Trial Judge.

8. Upon hearing learned counsel for the parties, this Court is unable to accept the contention of the opposite party. Insofar as the marking of the disputed document as Exhibit-1 is concerned, the document itself, although marked as an exhibit, and the signature of the defendant/petitioner thereon admitted, it is the specific defence case, as borne out by the written statement as well as the evidence of the husband of the petitioner, is that although the petitioner signed the said document, the same was a blank document at the juncture of signature and was subsequently filled in by a third party who is definitely not the husband of the petitioner.

9. Thus, the germane consideration on the plinth of the defence case is the veracity of the handwriting alleged to be of the husband of the petitioner on the disputed document, being Exhibit-1.

10. Thus, the report of the handwriting expert, if obtained, would undoubtedly be the best piece of evidence to prove the defence case and/or to disprove the case of the plaintiff.

11. Apart from the learned Trial Judge having overlooked such obvious aspect of the matter, thereby committing a jurisdictional error, the learned Trial Judge entirely proceeded on prejudging the evidentiary value of Exhibit-1 by resorting utterly to conjecture and his preconceived notions. For example, the learned trial Judge recorded in the order that it is asserted by the defendant that her husband put his signature on a blank challan, which is palpably incorrect on the face of the document and the pleadings. It is not the case of the petitioner that her husband put the signature on a blank challan but that she herself had put such signatu