V. Gopala Gowda, J.
1. This Regular First Appeal is by the defendant questioning the correctness of the judgment dated 19-12-1997 and decree, he has prayed to set aside the same by allowing this appeal and dismiss the suit urging various legal contentions.
2. In this judgment, for the sake of convenience, the rank of the parties is referred to as has been assigned in the plaint presented before the Trial Court.
3. Necessary brief facts are: Plaintiff is the holder in due course of the pro-note dated 19-11-1986 alleged to have been executed by the defendant in favour of a person known as B. Ramanna Hegde. He had in turn endorsed the pro-note in favour of the plaintiff for consideration. Thereafter plaintiff demanded to recover the amount from Ramanna Hegde and also defendant herein. His demand was not acceded. Therefore suit was instituted for decreeing the suit claim with interest as prayed.
4. The defendant entered appearance through his Counsel, filed written statement interalia denying the plaint averments that Ex.P. 1 and P.2 the pro-note and consideration receipt are forged and concocted documents. Further it is stated that during the year 1986 in the early part of December he had lost a bag containing certain documents. With regard to the same he has lodged a police complaint and also taken out publication in the newspaper. It is his further case that one Vijaya Bhaskar Shetty working as the Manager of the State Bank of India at that time was dealing with the defendant and he in collusion with the father-in-law of Ramanna Hegde concocted the pro-note and consideration receipt. Therefore he has stated that he is not liable to pay the suit claim and prayed for dismissal of the suit.
5. On the basis of the pleadings, the Trial Court framed 5 issues for its determination. The case went for Trial. On behalf of the plaintiff, including himself 3 witnesses were examined as PWs 1 to 3. Marked the documents produced as Ex.P. 1 to P.8. On behalf of the defendants, he himself was examined as DW-1 marked the documents produced as Ex.D. 1 to D. 11. The Trial Court on appreciation of the pleadings and evidence on record answered Issue Nos. 1 to 4 in the affirmative, Issue Nos. 5 and 6 in the negative and accordingly, judgment and decree is passed in favour of the plaintiff decreeing the suit as sought for with full costs and interest.
6. The correctness of the same is questioned in this appeal urging various legal grounds. The ground of attack of the impugned judgment is that the findings recorded on the contentious issues is erroneous for non-consideration of the legal evidence on record as the Learned Judge has misread the evidence on record and further it is contended that findings are erroneous in law for the reason that the Trial Court has recorded the findings on the contentious issues 1 to 4 though there is no evidence on record to answer the same in the affirmative. While answering issue Nos. 5 and 6 the Trial Court has not considered the legal evidence in favour of the defendant that Ex.P. 1 and P. 2 are forged documents is not properly appreciated and recorded a finding. Therefore the Learned Single Counsel has submitted that the same was liable to be set aside.
7. Learned Counsel Sri S.G Bhagawan, appearing on behalf of the defendant placing strong reliance upon Order 41 Rule 2 CPC contends that with the leave of the Court the ground which is not urged in the memorandum of appeal can be urged. The appellate Court in deciding the appeal shall not be confined to the grounds urged in the memorandum of appeal while permitting such new ground the party who may be affected must have sufficient opportunity to contest a case on that ground. Placing reliance upon the aforesaid provision of the CPC and the order sheet, objections filed by the defendant to the report of the Court Commissioner who is a handwriting expert. It is noted in the order sheet dated 13-8-1997 that objections will be considered along with the suit. The same is not considered while answering the contentious issue Nos. 1, 2 and 4 without placing the report of the Commissioner by examining the handwriting expert as required under Order 26 Rule 10(2) CPC as this provision is applicable in view of Rule 10A(2) of CPC. Placing reliance upon Ex.P.1 and P.2 and Commissioner's report recording a finding in answer to the contentious issue Nos. 1 and 2 is opposed to Section 45 and 73 of the Evidence Act. In support of his contention, he has placed reliance upon the following decisions.
1. : 1999CriLJ4294
2. : AIR1999Guj108
3. : [1955]2SCR1
4. : [1963]3SCR722
5. : 1977CriLJ711
6. : 1979CriLJ17
7. : [1990]1SCR78
8. : AIR1996SC1140
8. In Ishwariprasad v. Mohammad Isa : [1963]3SCR722 it has been held by the Apex Court that evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence.
9. In Sangram Singh v. Election Tribunal, Kotah : [1955]2SCR1 regarding procedures to be followed when the signatures are disputed. It is procedure something designed to facilitate justice and further its ends: not appeal enactment for punishment and penalties not a thing designed to trip people up. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decision should not be reached behind their backs, that proceedings that affect their lives and property should not be precluded from participating them.
10. In Magan Biharilal v. State Of Punjab : 1977CriLJ711 . In support of the proposition that it is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert.
11. In another decision in State (Delhiadministration) v. Pali Ram : 1979CriLJ17 , wherein the Apex Court after interpretation of Sections 45 and 73 of the Evidence Act law is laid down in support of the proposition that it is not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. It is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials.
12. With reference to the aforesaid decision, the Learned Counsel for the defendant placing strong reliance upon the statement of objections filed by the defendant to the report which was deferred for consideration alongwith the hearing of suit not considered and the report is not placed on record as evidence by examining him and therefore the procedure required to be followed is not followed. Though the decision in : 1999CriLJ4294 was decided in a criminal case, the legal principles are applicable to civil cases is the decision rendered by the Hon'ble Supreme Court in the decision reported in O. Bharathan v. K. Sudhakaran : AIR1996SC1140 , wherein at paragraphs 19,20 and 21 it has been held that the High Court was not right either in brushing aside the principles laid down by the Supreme Court in : 1979CriLJ17 on the ground that it was not a criminal case or taking upon itself the hazardous task of adjudicating upon the genuineness and authenticity of the signatures in question even without the assistance of a skilled and trained person whose services could have been easily availed of and in the same paragraph the relevant portion of the decision in : 1979CriLJ17 is extracted which states thus:
the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.
Placing reliance upon the aforesaid decision and particularly, the decision of the Supreme Court in : 1999CriLJ4294 which reads thus:
The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross-examination This Court in the case of Hazi Mohammed Ikramul Haque v. State of West Bengal AIR 1959 SC 188 concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons.
The Learned Counsel for the defendants has invited our attention to the finding recorded by the Trial Court on issue Nos. 1, 3 and 4 after referring to Ex.P. 1 and P2 and stated that the plaintiff got the documents examined through an expert at Allahabad by Mr. Kakkar who compared the signatures of the defendant as found in Ex.P. 1 and P2 with that of his admitted signatures found in the vakalath, written statement and affidavit and on going through the said documents he has given a clear opinion that signatures in Ex.P. 1 and P.2 are the signatures of the person whose signatures are the admitted signatures in the vakalath, written statement and affidavit. Therefore he has contended that the conclusion arrived at by the Learned Trial Judge that opinion of the expert fortified his views with signatures found in Ex.P. 1 and 2 are the signatures of the defendant and they are not the forged signatures. The said findings are attacked by the Learned Counsel for the defendant stating that the same is contrary to the decision referred to supra as the said expert is not examined before the Court under Order 26 Rule 10(2) CPC. The Trial Court has also not considered the statement of objections filed by the defendant to the report, wherein it is stated that the reasons assigned by him in support of his opinion and conclusion arrived at on comparison of the disputed signatures with that of the admitted signatures of the defendant is one and the same is an erroneous findings. Therefore the Learned Counsel prayed for setting aside the same by allowing this appeal.
13. Learned Senior Counsel for the plaintiff Sri Tarakaram, rebutting the aforesaid contentions and decisions relied upon by the defendant he has placed reliance upon the following decisions in support of his submissions:
1) 1969(2) MLJ284
2) 1971(2) MLJ407
3) : AIR1985Ker109
4) : AIR1992Guj1
5) 1983(2) KLJ 135
6) AIR 1922 Calcutta 12
7) : AIR1961Cal300
In support of the proposition wherein this Court and other Courts after placing reliance upon Order 26 Rule 10(2) CPC held that a Commissioner's report is made evidence available in the suit concerned. Then the Commissioner is not required to be placed under an oath or to work under a oath as a witness is always required to do. Nevertheless, the report made by him is elevated to the position of evidence tendered on oath in open Court. It is a departure from the normal rule of taking evidence as well as interpretation to be placed upon such legal provision making a definite departure from the normal is that before effect could be given to that special provision, every condition or every detail of the procedure prescribed by the law for the preparation of such a report should be strictly complied with Shivarama Bhat v. Mahabala Beat 1967(2) K.LJ 284.
14. That Under Section 18 of the Negotiable Instruments Act of 1881 the presumption in favour of the plaintiff, opinion of handwriting expert or person acquainted with one's handwriting had got a evidentiary value and it is a presumption of fact Under Section 114 of the Evidence Act and it has got evidentiary value Under Section 45 and 47 of the Evidence Act - Sharada Bai v. Syed Abdul Hai 1971 (2) MLJ 407.
15. Therefore the Learned Senior Counsel sought to justify the findings recorded on contentious issues 1, 3 and 4 and further sought to justify the findings recorded on other contentious issues namely 5 and 6. The original presumption in favour of the plaintiff in so far as execution of Ex.P. 1 and 2 by the defendant particularly, in view of the handwriting expert's report in addition to that of a comparison made by the Learned Trial Judge in exercise of his power U/s 73 of the Evidence Act, by assigning valid and cogent reasons, said issues are rightly answered against the defendant. Initially presumption regarding the legality of the document Ex.P. 1 and 2 is not rebutted by producing cogent evidence by defendant. Therefore he has submitted that grant of decree of the suit claim in favour of the plaintiff is perfectly legal and valid which does not warrant interference by this Court.
16. Both the Learned Counsel invited us to the pleadings and evidence on record with reference to the findings and reasons recorded on the contentious issues in justification of the findings recorded on the contentious issues in favour of the plaintiff and against the defendant. These contentions in detail, we are not adverting to in this judgment as the same is dependent on the issue that is required to be answered by us with regard to non-examination of handwriting expert, the findings recorded by the Trial Court on the contentious issue Nos. 3 and 4 are sustainable are not. Therefore, we have taken up that point first to answer as to whether the findings recorded on the aforesaid issue are vitiated either on account of erroneous reasoning or suffers from error in law. If answer is in the affirmative, for this point, what order should follow in this appeal?
17. The aforesaid points are answered in favour of the defendant for the following reasons:
On the basis of the pleadings particularly, regarding execution of Ex.P. 1 and 2 by the defendant that they are forged documents, the Trial Court has framed issue No. 1 which reads thus:
I. Whether the plaintiff proves that defendant has borrowed a sum of Rs. 1 lakh on 19-11-1986 from B. Ramanna Hegde at Mysore and executed a demand promissory note?
To prove this issue the plaintiff has got appointed handwriting expert Mr. Kakkar. The disputed signatures in Ex.P. 1 and P2 and admitted signatures found in vakalath, written statement and affidavit of the defendant were sent to him for his examination and submitted his expert's opinion as required Under Section 45 of the Evidence Act. As could be seen from the original record, the report is submitted by the Commissioner, The same is not marked as an exhibit by examining him as a witness in the Court. Nonetheless, the same is available in the original record with the photographs of the admitted signatures and disputed signatures with negatives alongwith the report. At page 105 to 105-G of the lower Court record with reference to the various aspects after referring to the disputed and admitted signatures marked namely, the scale movement, speed, pen pressure, presentation, alignment, slant, size, spacing, arrangement and positioning, he has opined for the reasons assigned under the aforesaid heads that the disputed signatures marked in Ex.P1 and 2 have been written by the standard signatures marked at A1 to A4.
18. This report is objected to by the defendant by filing a detailed objection statement. On 13-8-1997 the Learned Trial Judge has made a note in the order sheet that the objections filed by the defendant would be heard alongwith the suit and the case was adjourned to 21-8-1997 and it has been adjourned to various dates. The said objection statement is available in the record at page 51. The sum and substance of the objection is that the opinion of the expert is not at all in accordance with the observation of law. The basis given by the expert to come to a conclusion is vague and hence no opinion can be framed on such grounds. In the circumstances, the report of the expert is not sustainable in law and he has further denied all other observations of the expert in his report in so far as they are against the case of the defendant as set up in his written statement and the opinion by the expert is one sided partially based on inferences, presumption and suspicion and his report is not supported with proper and correct reasoning in support of his opinion. The plaintiff should examine the expert in order to give opportunity to the defendant to prove that the opinion given by him is not correct, proper or true.
19. In view of the aforesaid statement of objections, keeping in view the decisions of the Hon'ble Supreme Court in : 1999CriLJ4294 and : 1979CriLJ17 the relevant portions are extracted as above and also the decision in Rajkumar Rajindra Singh v. State Of Himachal Pradesh . : [1990]1SCR78 after referring to its earlier Constitution Bench judgment in A.R. Antulay v. R.S. Nayak : 1988CriLJ1661 wherein it has referred to the observations of Lord Cairns at page 672 of SCC : at page 1561 of AIR which portion is extracted in support of the proposition that no man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. At para 17 of the decision of Raj Kumar Rajindra Singh v. State of Himachal Pradesh it has been clearly held that it is well to remember that the Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. Further in : AIR1996SC1140 the Apex Court has laid down with regard to the hand writing expert's opinion Under Section 45 and 47 of the Evidence Act, after referring to its earlier decision in : 1979CriLJ17 , wherein it has been held that the same is applicable to the civil matters while adjudicating the authenticity of the signatures in question even without the assistance of a skilled and trained person whose services could have been easily availed of. If the aforesaid decisions are read along with Order 26 Rule 10A r/w. Rule 10(2) CPC, it clearly lays down the procedure which shall be construed as mandatory and depositions to be evidenced in suit by examining the commissioner personally.
20. In view of the categorical statement of objections filed by the defendant, relevant portion is extracted as above, seriously disputed the correctness of the reasons assigned by the handwriting expert and opinion rendered by him with reference to various aspects referred to in his report and he has categorically insisted that the commissioner should be examined in the case to prove the correctness of the report with regard to the reasons and his opinion. The Learned Trial Judge has also said that the objection statement will be considered at the time of hearing the suit. As could be seen from paragraphs 13, 14 and 15 of the impugned judgment while answering the contentious issue No. 1 nowhere he has referred to the statement of objections and he has also not examined whether the report could have been placed reliance by the Trial Court in view of Order 26 Rule10-A CPC r/w. Rule 10(2) and also the law laid down on this aspect of the matter by the Apex Court which relevant portions of the decisions are extensively referred to supra, would clearly mandates that examination of a handwriting expert is very much required in a case when the report of the Commissioner is disputed by the plaintiff. That is not done in the instant case. Therefore the submission made by the Learned Counsel Sri S.G. Bhagwan for defendant questioning the correctness of the findings recorded on issue No. 1 and other issues namely 2, 3, 4 and 5 and other issues in favour of the plaintiff against the defendant that they are all erroneous in law and error in law as the Learned Trial Judge place reliance upon the report and the provision Section 45 of the Evidence Act and exercise of his power Under Section 73 in addition to the report of the handwriting expert regarding the authenticity of the signatures found in Ex.P. 1 and P. 2 on comparison with the admitted signatures found in vakalath, written statement and affidavit of the defendant, therefore his submissions must be accepted as tenable as the same is based on the law laid down by the Supreme Court in the catena of cases referred to supra in the earlier paragraphs of this judgment.
21. In view of the exposition of law laid down by the Supreme Court upon which the defendant has rightly placed reliance which proposition of law with all force is applicable to the fact situation in support of the case of the defendant. Therefore the various decision upon which reliance has been placed by the Learned Senior Counsel Sri Tarakaram on behalf of the plaintiff cannot be accepted by this Court. Hence the submission made in this regard is liable to be rejected and accordingly rejected.
22. For the reasons stated supra, we answer points 1 and 2 in favour of the defendant by recording a finding that non-examination of the handwriting expert in the case before the Trial Court and placing strong reliance upon his report without considering the statement of objections filed by the defendant. The finding of fact recorded on issue No. 1 by the Trial Court having answered the above in favour of the plaintiff the other issues 2 to 5 are also answered in his favour by holding that Ex.P. 1 and P. 2 are proved. Therefore the defendant has received the consideration amount found at Ex.P.2 which conclusion is not based on proper appreciation of facts and legal evidence on record and the same is for want of legal evidence. Therefore The findings and reasons recorded on other contentious issues are Also liable to be set aside as the same are erroneous in law.
23. For the reasons stated supra, the impugned judgment and decree is liable to be set aside. Accordingly, it is set aside and the matter is remitted back to the Trial Court with liberty to the plaintiff to examine the land writing expert if he is available or take necessary steps in this regard to prove Ex. P. 1 and P. 2 and the case must be decided within 6 months from the date of receipt of this judgment. Appeal is allowed with the above said directions.
24. Office is directed to draw up the decree accordingly. Refund Court fee paid as per Section 64(2) of the Karnataka Court Fees and Suit Valuation Act, 1958.