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2019 Supreme(P&H) 1950
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Raj Mohan Singh, J.
Pawan Kumar - Appellant
Versus
Fulla Devi - Respondent
Civil Revision No. 4515 of 2018 (O&M)
Decided On : 30-04-2019
Mr. G.S. Sirphikhi, Advocate for the Appellant.; Ms. Khushbir K. Bhullar, Advocate for the Respondent.
Admissibility of expert reports, requirement for examination-in-chief before cross-examination, and the distinction between expert witnesses appointed under specific rules and witnesses under general evidence laws.
Headnote:
Fingerprint Expert - Specific Performance Suit - Section 151CPC, Section 293 of Cr.P.C, Section 138 of the Indian Evidence Act, Order 26 Rule 10-A CPC, Order 26 Rule 10(2) CPC, Section 45 of the Indian Evidence Act - The court discussed the admissibility of the report of the fingerprint expert, the requirement for examination-in-chief before cross-examination, and the distinction between an expert appointed under Order 26 Rule 10(2) CPC and a witness under Sections 45 and 138 of the Indian Evidence Act.
Fact of the Case:
Plaintiff filed a suit for specific performance based on an agreement to sell. Defendant contested the suit, claiming the agreement was false and fabricated due to the absence of thumb impressions.
Finding of the Court:
The court found no error in the trial court's dismissal of the application for cross-examination of the fingerprint expert, as the expert was not appointed under Order 26 Rule 10(2) CPC and was never examined in-chief.
Issues: Admissibility of fingerprint expert's report, requirement for examination-in-chief before cross-examination, and distinction between expert appointed under Order 26 Rule 10(2) CPC and a witness under Sections 45 and 138 of the Indian Evidence Act.
Ratio Decidendi: The court held that the witness must be first examined in-chief before cross-examination, and the appointment of the expert witness did not fall under Order 26 Rule 10(2) CPC, making the application for cross-examination invalid.
Final Decision: The revision petition was found to be devoid of merits and dismissed.
JUDGMENT
Raj Mohan Singh. J. - Petitioner has preferred this revision petition against the order dated 16.05.2018 passed by Addl. Civil Judge (Sr. Divn.) Batala vide which the application filed by the plaintiff/petitioner for permission to cross-examine Fingerprint Expert, Fingerprint Bureau Phillaur on the report dated 24.11.2017 was dismissed.
2. Plaintiff filed a suit for specific performance on the basis of agreement to sell dated 10.04.2012. Defendant/respondent contested the suit on the premise that the agreement to sell does not bear thumb impressions of the defendant and the document, if any in existence is false and fabricated. The suit was contested on other grounds as well.
3. Plaintiff himself filed an application under Section 151CPC for direction to the defendant to appear in Court personally and give her thumb impressions for comparison with the agreement to sell from handwriting and fingerprint expert.
4. In order to arrive at just decision, the trial Court held that the thumb impressions of the defendant was required to be proved by way of comparison of the specimen thumb impressions of the defendant with thumb impressions appearing on the agreement to sell dated 10.04.2012. The Court was of the opinion that the thumb impressions of the defendant be compared from the Government Laboratory i.e. CFSL, Chandigarh. In view of that the application was allowed vide order dated 26.08.2015 passed by the Addl. Civil Judge (Sr. Divn.) Batala, subject to the condition that all the expenses for comparison of thumb impression of the defendant be borne by the plaintiff to be paid to the CFSL Chandigarh. Thereafter, needful was done in the context of comparison and giving report by the Director, Finger Print Bureau, Phillaur. The opinion is admissible in evidence under Section 293 of Cr.P.C.
5. Thereafter, the application was filed by the plaintiff for cross-examination of the witness Rajbir Kaur i.e. Fingerprint Expert, Fingerprint Bureau, Phillaur on the report dated 24.11.2017. The said application was contested by the defendant on the premise that the report has evidenced that the agreement to sell does not bear thumb impressions of the defendant. The Expert was never examined in examination-in-chief. Right to cross-examine begins as per Section 138 of the Indian Evidence Act only after the witness examined in examination-in-chief. The trial Court dismissed the application vide the impugned order and adjourned the case for rebuttal evidence and arguments.
6. At the time of issuance of notice of motion on 18.07.2017, following order was passed by this Court:-
"Learned counsel for the petitioner relies upon Parappa and others Vs. Bhimappa and another, 2008(25) RCR (Civil) 635 (Karnatka) to contend that tendering of report of finger print expert and finger print bureau, amounts to examination-in-chief of the expert in view of Order 26 Rule 10-A CPC and the party disputing the correctness of said report has a right to summon the expert for cross examination.
Notice of motion for 01.10.2018.
In the meanwhile, passing of final order shall remain stayed."
7. Learned counsel for the petitioner sought to address the arguments on the strength of Parappa and others vs. Bhimappa and another, 2008(25) R.C.R. (Civil) 635 and contended that the report of the Expert amounts to examination-in-chief of the Expert in view of Order 26 Rule 10-A, CPC and the party disputing the correctness of the report has a right to summon the expert for cross-examination.
8. I have considered the submissions made by learned counsel for the parties.
9. Perusal of the a forecited judgment would show that the author of the report has to be examined on oath and an opportunity must be given to the accused to cross-examine the said expert witness in respect of correctness of the report. Only thereafter, such report becomes admissible. When the Expert is appointed as Commissioner by the Court in a civil case at the instance of one of the party, the Court may issu
