1985 Supreme(MP) 703

IN THE HIGH COURT OF MADHYA PRADESH
R.K. Verma, J.
Babulal – Applicant
Versus
Gendalal - Non-applicant
C.R. No. 1103 of 1982 (I)
Decided On : 11-12-1985

Headnote:(1) Civil Procedure Code, 1908 – O.6, R.17 – amendment sought regarding jurisdictional competence of Court – should be allowed.

       (2) Evidence Act, 1872 – S. 45 – writing examined by one expert – examination by another expert not barred under the law.

       (3) Evidence Act, 1872 – S. 45 – opinion of expert – not conclusive – Court mayor may not believe his opinion.

       (4) Civil Procedure Code, 1908 – O. 14, R. 5 – additional issue sought to be framed – point already covered under existing issues – additional issue need not be framed.

        Short Note

       1. The present revision is directed against the order rejecting the amendment application under Order 6, Rule 17 of the Code of Civil Procedure, another application under section 45 of the Evidence Act read with section 151 of the Code of Civil Procedure for permission to examine the signatures by another handwriting Expert and the third application under Order 14, Rule 15 of the Code of Civil Procedure.

       Held: This revision arises out of a suit for recovery of money advanced on a promissory – note executed by the defendant. By the application for amendment, the defendant wants to plead that he is covered under the definition of Schedule Tribe and the Madhya Pradesh Anusuchit Jati Tatha Janjati Rini Sabayata Adhiniyam, 1967 and as such, the jurisdiction of the civil Court is barred to try the suit. The learned trial Court has rejected the amendment stating erroneously that the controversy raised is covered in an issue already framed, but that issue mentions Rin Niwaran Adhiniyam and not Madbya Pradesh Anusuchit Jati Tatba Janjati Rini Sahayata Adhiniyam. As Such, the order rejecting the defendant's application under Order 6, Rule 17 of the Code of Civil Procedure is set aside and the amendment sought in the defendants application is allowed.

       2. The learned trial Court has rejected the application of the defendant for examining the signatures by another hand writing Expert. The testimoney of the hand writing Expert has to be taken only as a guide and the trial Judge is at liberty to believe or disbelieve the evidence of the hand – writing Expert. The opinion of the hand writing Expert is not conclusive. Therefore, the examination of the hand – writing by another Expert at the instance of the defendant does not appear barred under any provision of law and the counsel appearing before me have not pointed out any provision of law excluding opportunity for examining the hand – writing by another Expert, if the handwriting has been examined by one hand writing Expert already The learned counsel have also not cited any authority that the services of another handwriting Expert can be availed only if the first one has been found to be incompetent. In the circumstances, I deem it fit to permit an opportunity to the defendant to helve another Expert examined the impugned signatures. Toe order rejecting the second application under section 45 of the Evidence Act read with section 151 of the Code of Civil Procedure is set aside and the defendant's application is allowed.

       3. As regards the third application moved under Order 14, Rule 5 of the Code of Civil Procedure, the defendant has prayed for framing an 'issue' whether having regard to the indigent circumstances of the defendant, it was necessary to grant him facility of installments of Rs. 200/ – per year. But this issue is redundant being already covered in issue relating to the relief. The order of the learned Trial Court rejecting this application is upheld. Revision disposed of.