Jitendra Nath Samaddar vs Mohd. Ismail Ansari

Amalya Kumar Nandi, J.—This revisional application is directed against an order No.95 dated 9.9.1985 by 2nd Additional Court of Munsif, Howrah rejecting an application for appointment of a handwriting expert. The Court sought to unsurp the function of an expert and intended to pay the role of an expert. The opposite party in supporting the decision relied upon the decisions in Bisseswar Poddar Vs. Nabadwip Chandra Poddar and Another, and particularly upon the observation in para 37 of the said decision. It cannot be laid down as a blanket proposition of law that the Court in no circumstances can compare the disputed hand-writing with an admitted handwriting. As a matter of fact Section 73 of the Evidence Act vests such power in Court. But the Court will exercise such power only in exceptional circumstances. The case cited by the petitioner is such an exceptional case. This court held that the Court can play the role of an expert if neither party calls an expert of handwriting expert is not available. In such case Court cannot but act u/s 73 of the Evidence Act. In our case a party has asked for the assistance of an expert. Since, thereafter, there have been decisions whereby the Court''s function as an expert has been discouraged. In the decisions Smt. Sahta Trivedi v. Life Insurance Corporation of India, AIR 1988 Del 39, and in another decisions of Supreme Court in The State (Delhi Administration) Vs. Pali Ram, it has been held that the Judge should not compare the disputed handwriting with the admitted handwriting to reach a conclusion. In another case State of Gujarat v. Vindya Chandra Chhota Pal Pathi, AIR 1967 SC 778, the Supreme Court further held that the Court cannot record a finding merely by comparison of the disputed writing with proved or admitted handwriting. Comparison by Court is permissible to appreciate the evidence tendered to prove the handwriting. Therefore, the Court below committed jurisdictional error in disallowing the petition for appointment of handwriting expert on the ground that he would himself compare the signatures. In this view of the matter I allowed the revision application and set aside the impugned order. The prayer for appointment of a handwriting expert stands allowed.