Case No: Civil Revision No. 2376 of 1998
Judge: Md. Abdul Matin,
Court: High Court Division,,
Advocate: Mr. M. A. Samad,,
Citation: 53 DLR (2001) 214
Case Year: 2001
Appellant: Dr Wakil Ahmed and others
Respondent: Sufia Khatun and others
Subject: Law of Evidence, Procedural Law,
Delivery Date: 2000-7-27
High Court Division
(Civil Revisional Jurisdiction)
Md. Abdul Matin, J.
Dr. Wakil Ahmed and others
Sufia Khatun and others
July 27, 2000.
Evidence Act (I of 1872)
Sections 45 & 73
There are different modes of proving the signature or hand writing on documents but section 45 is one of them and in the instant case the court decided to have opinion of the expert and there is no hard and fast rule for the court as to which mode it should follow.
Cases Referred To-
Nowazrullah and another Vs. Waz Khatun and another 45 DLR 279; Abdul Ghani Malitha and another Vs. Sariatullah Biswas and others 16 DLR 157; Kassarbai Vs. Jothabhai Jivan AIR 1928 Privy Council, 277; Sk Abul Qasem and others Vs. Mayez Uddin Mondal and others 45 DLR 169.
MA Samad, Advocate—For the Petitioners.
Garib Newaz with Maksuda Akhter, Advocates—For the Opposite Parties.
Civil Revision No. 2376 of 1998.
Md. Abdul Matin J.
This Rule is directed against order No.19 dated 24-5-1998 passed by the Additional Subordinate Judge, Dhaka in Title Appeal No. 48 of 1997.
2. The opposite party No. 1 as plaintiff instituted title suit No. 28 of 1993 in the Court of First Assistant Judge, Dhaka for declaration and cancellation of deed and for permanent injunction. The suit was transferred to the Court of First Additional Assistant Judge and ultimately to the Third Court of Senior Assistant Judge, Dhaka for hearing and on transfer the said suit was numbered as Title Suit No. 63 of 1995.
3. During the pendency of the appeal the plaintiff opposite party No.1 filed an application on 18-2-1998 under Order 41 rule 27 read with section 151 CPC for sending the registered sale deed dated 15-1-1964 to a hand writing expert for opinion after comparing the LTI of the plaintiff appellant on the disputed sale deed.
4. By the impugned order the appellate Court allowed the prayer and ordered for sending the documents in question for comparing the LTI thereon to be compared with the admitted LTI of the plaintiff appellant. The court also directed that 3(three) LTIs of the plaintiff appellant should be taken in the court on 28-6-98 and should also be sent for expert opinion after comparing the LTI on the disputed sale deed and being aggrieved by the order of the Appellate Court the defendants as petitioners moved this court and obtained the present Rule.
5. Heard Mr. MA Samad, the learned Advocate appearing for the defendant-petitioners and Mr. Garib Newaz, the learned Advocate appearing for the plaintiff opposite parties, perused
6. The learned Advocate appearing for the petitioners submits that before the trial Court the opposite party No.1 herself filed an application praying for not sending the document in question dated 15-1-1964 to an expert for opinion and prayed for comparison of the LTI thereon with the admitted LTI of the plaintiff by the court under section 73 of the Evidence Act and on the prayer of the plaintiff the court compared the LTI in presence of the Advocates of the parties and came to its own finding that the LTI appearing in the sale deed dated 15-1-1964 is that of the plaintiff and therefore the plaintiff is estopped from challenging the finding of the trial Court. The learned Advocate next submits that since the trial Court compared the LTI and came to a positive finding that the LTI appearing in the sale deed dated 15-1-1964 is the LTI of the plaintiff, the appellate Court also should have exercised his power under section 73 of the Evidence Act and should not have allowed the prayer of the plaintiff appellant for sending it to the hand writing expert for opinion. The learned Advocate lastly, submits that the prayer for hand writing expert opinion at the appellate stage was belated and is a device to prolong the proceeding and being not bona fide should have been rejected by the Appellate Court. Mr. Samad has referred to the case of Nowazrullah and another Vs. Waz Khatun and another reported in 45 DLR 279 in support of his contention wherein it was held that the court at the time of deciding a case may compare the disputed hand writing and signature with the admitted hand writing or signature of the person concerned and come to the conclusion about the genuineness of the same. Such finding being a finding of fact cannot be assailed either in second Appeal or in Revision. On perusal of the judgment as referred by the learned Advocate for the petitioner it appears that it was held in that case that such finding cannot be assailed either in second appeal or in revision. Nowhere it has been stated that such a finding by the trial Court cannot be questioned before the First Appellate Court where that finding is one of the grounds of the appeal the Learned Advocate for the petitioner has referred to the case of Abdul Ghani Malitha and another Vs. Sariatullah Biswas and others reported in 16 DLR 157 wherein it was held that it is not necessary that whenever a person denies his signature or hand writing in a document, it should be sent to an expert for opinion as there are other modes of proving hand writing or signature as provided in sections 45, 46, 67 and 73 of the Evidence Act.
7. It is true that there are different modes of proving the signature or hand writing on a document but section 45 is one of them and in the instant case the court decided to have opinion of the expert and there is no hard and fast rule for the court as to which mode it should follow. In the instant case it is LTI of the plaintiff in the sale deed which is in question and the appellate Court thought it wise to have it examined by the hand writing expert. I find no illegality in so doing.
8. Mr Garib Newaz, the learned Advocate appearing for the opposite parties, on the other hand, referred to the case of Kassarbai Vs. Jothabhai Jivan reported in AIR 1928 Privy council, 277. In that case it was held that they would have thought it unsatisfactory and dangerous in any event to take a decision in such a case as this on the correct determination of the genuineness of a signature by mere comparison with admitted signatures, specially without the aid of microscopic enlargements or any expert advice.
9. It is pertinent to mention that in that case also their Lordships themselves compared the endorsement with the admitted signature and they were unable to decide. The learned Advocate further referred to the case of Sk Abul Qasern and others Vs. Mayez Uddin Mondal and others reported in 45 DLR 169 wherein it was held that it is true that court itself can compare any signature or LTI of any concerned person himself under section 73 Evidence Act but it is better to have an expert’s opinion also, particularly in a case of LTI.
10. Since in instant case opinion sought to be obtained by appellate Court relates to the LTI, I feel it is a better course to have expert’s opinion and after report of the expert court can again compare the LTI of the disputed document with the admitted LTI of the plaintiff appellant. The expert’s report or opinion is not binding upon the Court. It will only enable the Court appreciate the matter in a better way but it is the court and Court alone who decides the matter finally.
11. The report is yet be obtained and Court is yet to accept it or not and Court is yet to come to its own conclusion after he takes other evidence of record along with the expert’s opinion and, necessary, by comparing the LTI himself and therefore the respondent-petitioners have nothing to worry at this stage.
12. As to the argument of Mr. MA Samad on the question of waiver and estoppel he has referred to section 115 of the Evidence Act but it is to accept the contention of the learned Advocate once an application is filed before the trial Court praying for taking recourse to section 73 of the Evidence Act he is estopped from praying for expert’s opinion under section 45 of the Evidence Act before the appellate Court. The comparison of the LTI by the court is its discretion and it does not depend on party’s prayer alone nor any court can be compelled to take recourse to particular mode of proof of hand writing either to sections 45, 47, 67 or 73 of the Evidence Act. In the instant Case the impugned judgment and order as it appears does not suffer from any infirmity and therefore calls for no interference by this Court. Besides, there has been no failure of justice because of the impugned order,
13. Mr Samad lastly, submits that the appellate Court ought to have sent the LTI of the plaintiff appellant already on record but instead directed sending of LTI to be taken. There is a chance of misleading the expert opinion. Mr. Samad submits that for ends of justice the Appellate Court should have prescribed time limit for sending the report. I find substance in the submissions of the learned Advocate and the Appellate Court is directed to send the LTIs of the plaintiff appellant opposite party already on record along with new ones taken as proposed and the hand writing expert is to submit the report within 2 months from the date of receipt of the papers from the Court.
Accordingly, this Rule is discharged with the observation as above.
There shall be no order as to cost.