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2010 Supreme(Sikk) 10
High Court of Sikkim
P.D. DINAKARAN, J.
Prashant Kumar Goyal
Versus
Sogra Khatoon & Others
Writ Petitions (C) No. 44 of 2010 & 45 of 2010
Decided on : 21-10-2010
For the Petitioner:N.K.P. Sarraf, S.K. Sarraf, Advocates.
For the Respondents:R1, Karma Thinlay Namgyal, Advocate.
The main legal point established in the judgment is that lack of facilities for examining documents by handwriting experts and the overload of work for handwriting experts at Kolkata were not justifications to reject the application for handwriting expert opinion. The court also emphasized that refusal to grant leave for marking the seven documents as additional documents would result in a miscarriage of justice.
Headnote:
Handwriting Expert Opinion - Civil Procedure - Order XXVI Rule 10A(1), Order VIII Rule 1A(3) - The court considered the entitlement of the defendant to seek direction for handwriting expert opinion and to mark seven documents as additional documents at the hearing of the suit. The court held that lack of facilities for examining documents by handwriting experts and the overload of work for handwriting experts at Kolkata were not justifications to reject the application for handwriting expert opinion. The court also allowed the defendant to adduce the seven documents as additional documents, emphasizing that refusal to grant leave would result in a miscarriage of justice.
Fact of the Case:
The defendant filed applications seeking direction for handwriting expert opinion and to mark seven documents as additional documents at the hearing of the suit. The trial judge dismissed both applications, stating that the defendant was attempting to protract the proceedings and that the state lacked facilities for examining documents by handwriting experts.
Finding of the Court:
The court found that the lack of facilities for examining documents by handwriting experts and the overload of work for handwriting experts at Kolkata were not justifications to reject the application for handwriting expert opinion. The court also allowed the defendant to adduce the seven documents as additional documents, emphasizing that refusal to grant leave would result in a miscarriage of justice.
Issues: The issues raised for consideration were whether the defendant was entitled to seek direction for handwriting expert opinion and whether the defendant was entitled to mark seven documents as additional documents at the hearing of the suit.
Ratio Decidendi: The court held that lack of facilities for examining documents by handwriting experts and the overload of work for handwriting experts at Kolkata were not justifications to reject the application for handwriting expert opinion. The court also emphasized that refusal to grant leave for marking the seven documents as additional documents would result in a miscarriage of justice.
Final Decision: The court set aside the trial judge's order and allowed the defendant to seek handwriting expert opinion and to adduce the seven documents as additional documents at the hearing of the suit.
Dinakaran, CJ.
1. These writ petitions are directed against a common order dated 09.09.2010 made in two interim applications (unnumbered) in Title Suit No.1 of 2005 on the file of the learned District Judge, Special Division-I Sikkim at Gangtok which was originally numbered as Civil Suit No.9 of 2000 on the file of the learned District Judge, East and North Districts at Gangtok.
2. The writ petitioner is the defendant No. 4 in the said suit. For the purpose of convenience, the parties are referred to as per the rank before the trial Court.
3. The writ petitioner/defendant No. 4 filed the above two un-numbered applications, namely,
(i) under Order XXVI, Rule 10A (1) read with Sections 75 and 151 of the Code of Civil Procedure, 1908, seeking a direction for sending all the documents and sample signatures of defendant No.1 for scrutiny by expert for their opinion at the cost of defendant No. 4, for proper decision and adjudication of the suit claim; and
(ii) under Order VIII, Rule 1 A (3) read with Section 151 of the Code of Civil Procedure, 1908 seeking leave of the Court for producing the following documents at the hearing of the suit as additional documents namely:-
(a) the joint compromise petition of the contesting parties in Regular First Appeal No. 4 of 2002 filed before the High Court of Sikkim at Gangtok is dated 20.03.2003;
(b) the certified copy of the decree in the said appeal in RFA No. 4 of 2002 filed by the defendant No. 4 dated 20.03.2003;
(c) the certified copy of the decree in original of Civil Suit No. 36 of 1997 dated 17.07.2000;
(d) the sale deed document dated 29.03.2003;
(e) the Challan for money deposited by defendant No. 4 as land registration fee in the State Bank of Sikkim dated 15.12.2003;
(f) the memo No. 2/DCE addressed to defendant No. 4 from the Sub-Registrar dated 03.01.2004; and
(g) the seven revenue receipts dated 22.04.2005, 17.04.2006, 24.04.2007,21.02.2008,21.01.2009, 21.01.2009 and 10.03.2010.
4. The learned District Judge, Special Division-I dismissed both the applications by a common order dated 09.09.2010.
5. As the writ petitioner has filed only a single writ petition against the said common order dated 09.09.2010 made in two unnumbered applications referred to above, Mr. N.K.P. Sarraf, learned counsel appearing for the petitioner, seeks the permission of this Court to pay additional court fee for two writ petitions against the said two unnumbered applications. Permission granted. The Registry is granted to number both the writ petitions accordingly.
6. The learned trial Judge dismissed both the said applications for the following reasons: -
firstly, the defendant No. 4 is attempting to protract the proceedings; secondly, the State of Sikkim does not have necessary facilities for examining the documents by handwriting experts; and the handwriting experts at Kolkata, which is the nearest State offering such facilities, are also over burdened and, unable to meet the demand; thirdly, the signatures can very well be proved by the witnesses available; and fourthly, the defendant No. 4 has not given valid and just reason for the delay in seeking the permission to file the above mentioned seven additional documents at this belated stage, when the trial has already commenced.
7. Hence these writ petitions.
8.1 Mr. Sarraf, learned counsel appearing for the petitioner contends that the defendants No. 1 and 2 are set exparte; and the plaintiff herself filed a similar application earlier, to refer the documents relating to the suit property to the handwriting experts for their expert opinion and therefore, the defendant No. 4 has no option except to get the opinion of a handwriting expert to substantiate his case.
8.2 The reasons that non-availability of the facility of handwriting expert in the State of Sikkim or that of Kolkata also is over burdened with such work, cannot be a justification to reject the application for granting permission to get handwriting expert’s opinion of the docume
