Judgment :- 1. This is an appeal against one of the orders of remand made by the Subordinate Judge of Kasargode. A long judgment culminating in a remand order, an almost complete discussion ultimately failing to reach a decision, are features of this judgment which initially caused me surprise. I should have hesitated to confirm this order but for the fact that after hearing counsel on both sides, they are also inclined to have a fresh trial but with more specific directions as to what should take place then and I am satisfied that the joint request is not unjust. 2. Now to the facts. The plaintiff, who is the appellant, brought a suit on a promissory note. Ex. Al, alleged to have been executed by the defendant but denied by him in his written statement. The note contains a thumb impression and signature, the identity of which has to be proved before a decree can be granted to the plaintiff. In the course of the litigation, the opinion of more than one expert was sought. Out of the three specialists to whom the questioned document was submitted for examination, only one Shri. H. L. Badhwar, Examiner of Questioned Documents, Indore (referred to by the Subordinate Judge as Indore Expert) gave the opinion that the promissory note was in the handwriting of the defendant and that it contained his signatures and thumb impression. Following upon this report dated 15-1-1967 he was examined on commission on 21-9-1967 as per order in R. I. A. No. 718 of 1967. The plaintiff submitted a set of interrogations. The defendant did not file any cross-interrogatories although some opportunity was afforded, it is stated in the judgment. The questions suggested by the plaintiff were forwarded and the evidence of the expert recorded on commission (vide Ex C2). On 27-11-1967 the defendant applied in R. I. A. No. 1463 of 1967 for sending the promissory note to another expert for purpose of comparison of the thumb impression and signature in the impugned document with the admitted thumb impression and signature of the defendant. Messrs. Bawa & Associates, Document Examiners of Bombay were directed by the court to compare the thumb impressions. Somehow, there was nothing mentioned in the forwarding letter of the court regarding the comparison of the signatures. Messrs. Bawa & Associates, Document Examiners of Bombay were directed by the court to compare the thumb impressions. Somehow, there was nothing mentioned in the forwarding letter of the court regarding the comparison of the signatures. May be, this was an omission, but it has become rather significant in the light of what took place later; for, Bawa and Associates reported that 'unfortunately in the present case of the disputed thumb impressions, which is very unusual, they said both the thumb impressions in dispute are not only partial but also blurred, and that besides, all the research work done by him, not even a solid ridge characteristic is visible which could be positively compared with the specimen thumb impressions." (Poor English!) In short, the expert came to the unhelpful conclusion that the disputed thumb impression had become too indistinct to be deciphered with precision. He pointed out, however, that the only alternative left to him was to compare the complete signatures written on the revenue stamps provided admitted signatures were furnished. But oddly enough the court had failed to direct comparison of the signatures or to forward admitted signatures and so Messrs Bawa & Associates could not express any opinion on the signature in the promissory note. It is also noteworthy that much earlier, i. e. on 19 111965, the plaintiff had applied as per R. I. A. 1952 of 1965 to forward the thumb impression and signature in Ex. P1 to an expert. Accordingly, they were forwarded to the Assistant Director of Forensic Science Laboratory, Medical College Buildings, Trivandrum, who returned them for certain technical reasons. Therefore, on 12 81966, the finger prints were sent to the Director, Finger Print Bureau, for comparison. He gave the opinion that the thumb impressions were far too indistinct to yield a sufficient number of ridge peculiarities to enable him to perform the comparison. It was after this failure that the 'Indore Expert' was approached. 3. The trial court accepted the evidence of the Indore Expert, felt reassured about the conclusion by its own comparison of the signatures and thumb impressions and was prepared to act upon the direct testimony of P. W.1 which lent strength to the genuineness of the promissory note. It may also be noticed that on 5-11-1968 the defendant had moved the court by R. I. A. Nos. It may also be noticed that on 5-11-1968 the defendant had moved the court by R. I. A. Nos. 1985 and 1986 of 1958 to examine Bawa & Associates, Bombay as well as the finger print expert, Trivandrum, on commission. They were rejected by the trial court as being belated. In this background, the learned Subordinate Judge who heard the appeal, observed. "The evidence of the Indore expert, who says that they were fit for comparison, is to be viewed in the light of the contradictory opinion of the two other experts. In the circumstances, an opportunity should have been given to the defendant to bring in evidence the reports of the two other experts who had given their opinion that the thumb impressions were unfit for comparison." The learned Subordinate Judge was highly skeptical about the Indore expert's opinion evidence and felt that before the truth could be discovered, this expert should have been subjected "to strict cross-examination in the witness box on his report" and that an opportunity should have been afforded to the defendant to perform this viva voce operation in open court. Pw.1, the son of the plaintiff, was examined and was believed by the court which saw the witness. However, the appellate judge was disinclined to place credence on his testimony, inter alia, because the evidence of Pw 1 that he was present at that time was not borne out by his being shown as an attestor to the promissory note. While I agree with the learned Subordinate Judge that the absence of the plaintiff from the witness box must give rise to an adverse inference under S.114 of the Evidence Act, the absence of Pw.1's name as an attestor in the promissory note is too fanciful a ground to reject his testimony. Still more objectionable is the other ground mentioned by him: "Pw.1 has admitted that there was a criminal' case against him for having escaped from lawful custody. It is true that he was acquitted in that case. Ex BI is certified copy of the judgment in that criminal case. He was acquitted giving the benefit of doubt to him." Strange for a court to state! By what canon can a witness be discredited merely because a case had been launched against him and in spite of the fact that he had been acquitted in that case? Ex BI is certified copy of the judgment in that criminal case. He was acquitted giving the benefit of doubt to him." Strange for a court to state! By what canon can a witness be discredited merely because a case had been launched against him and in spite of the fact that he had been acquitted in that case? It is dangerous to disbelieve a witness merely because he has had the misfortune to have been involved in a criminal case. The noblest of men have been falsely implicated in criminal cases in the world and if guilt should stick in spite of acquittal and their character remaintained even after judicial absolution, there is something very wrong in the system. It is a pity that the appellate judge has not evaluated Pw.1's testimony in a judicial way. It is a different thing to disbelieve him for intrinsic reasons of improbability, such as have been marshalled by the learned Subordinate Judge himself when analysing the evidence of Pw.1 with reference to the payment of consideration. As for the major reason mentioned by the Subordinate Judge for ordering a remand, some criticism has been voiced at the bar. The learned Subordinate Judge has observed that "the learned Advocate for the appellant has vehemently argued that he should be given an opportunity to get the evidence of the two other experts. In the light of the fact that I am anyhow remanding the suit to the lower court, I am of opinion that the defendant should be given an opportunity to get the evidence of the two other experts. Then only any useful purpose will be served by cross-examining the Indore expert, because he has to be cross-examined with the contradictory opinion of the two other experts". The basic deficiency in the appreciation of the expert evidence of the Indore Handwriting Specialist, Ex. C2, is, according to the Subordinate Judge, that he was not summoned to court and examined so as to enable the judge to see the witness and the opposite party to cross-examine him effectively. The I adore Expert's evidence was collected through the device of interrogatories served through a commissioner. There are many practical advantages in such a procedure and serious inconvenience and expense in the witness stand method assembling oral testimony in a case. We are a large country, a poor people. The I adore Expert's evidence was collected through the device of interrogatories served through a commissioner. There are many practical advantages in such a procedure and serious inconvenience and expense in the witness stand method assembling oral testimony in a case. We are a large country, a poor people. Our courts adjourn cases frequently sending back witnesses regardless of their having come from long distances. There is a good case for flexible and informal procedures like affidavits and answers to interrogatories, giving up the insistence of viva voce examination on oath in open court at least when less important testimony has to be gathered or only formal evidence is expected. All this is for the Law Commissions and Legislatures to consider seriously if we are to have a streamlined and implied system. Looking at the law of procedure as it is, I sought counsel's assistance to ferret out the provision in the Civil Procedure Code, 0.26 Rule I CPC. enables the court to "issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from attending the court or who is from sickness or infirmity unable to attend it." It is obvious that none of the three experts resides within the local limits of the court's jurisdiction and none of them are alleged to be unable to attend court for reasons of sickness or infirmity. Therefore, putting aside 0.26 R.1, CPC. the normal procedure is to direct the commissioner to hold a viva voce examination of the person. Such examination, if it is to be meaningful, has to be oral, in the sense of examination in chief, cross-examination and re-examination. Submission of interrogatories cannot be effective because it seriously handicaps the opposite party. How can cross-interrogatories be furnished without knowing the answers of the witness to the interrogatories? And what about clarifications usually elicited in re-examination? The process of examination through interrogatories ordinarily stultifies judicial process although one may visualise situations where it may be impracticable or unnecessary to resort to any other method than to examine on interrogatories. At present, there is no legal provision warranting this method. In this connection, the ruling reported in Ram Singh v. Ram Bahadur Singh (AIR. The process of examination through interrogatories ordinarily stultifies judicial process although one may visualise situations where it may be impracticable or unnecessary to resort to any other method than to examine on interrogatories. At present, there is no legal provision warranting this method. In this connection, the ruling reported in Ram Singh v. Ram Bahadur Singh (AIR. 1934 Patna 60) was brought to my notice and I may excerpt the headnote: "When handwriting expert is to be examined on commission by written interrogatories, the Court acts without jurisdiction if it orders the defendants to file cross-interrogatories. The defendant can insist on an opportunity to cross-examine the witness orally" Of course, the learned judge points out that if the party had consented to submit cross-interrogatories that would have been another matter. The vitality of our trial system consists in subjecting witnesses to cross-examination so that truth may be discovered. This is deflated or defeated if paper cross-interrogatories are to be substituted for the clan of the living voice. Frequently, oral examination is rather stilted, irritatingly prolix and self-defeating in our forensic procedure; all the same the mechanics of interrogatories is altogether inadequate. I have no doubt that the examination on interrogatories of the Indore Expert (Ext. C2) was illegal and the evidence so procured should not have been acted upon. 4. The real difficulty in the remand order arises on account of the direction by the Subordinate judge to summon the experts and subject them to examination in court. Had it been possible, it would have helped the court a great deal, but 0.16 R.19 CPC. provides that: "No one shall be ordered to attend in person to give evidence unless he resides , (a) within the local limits of the Court's ordinary original jurisdiction, or (b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place were he resides and the place where the Court is situate) less than two hundred miles distance from the court-house" The nearest of the experts is in Trivandrum which place is more than 200 miles from Kasargod. The other two experts are farther away and so the direction of the appellate judge that the three expert should be compelled to give evidence in person in court is not feasible in the face of 0.16 R.19 C. P. C. This disability, incidentally, brings into focus the complaint that our procedural law is quite fossilised in some respects. For, the authors of the Code while drafting our law of procedure at the turn of the century never visualised aerial travel so common to-day, and thought in terms of the railway and steamer services only! And during the last sixty years when revolutionary changes have overtaken India and the world, this obsolescent provision has remained un-updated! Indeed, the clause in question confines the limit to 50 miles where railway or steamer communication or other established public conveyance is not available. Although India moves slow, there is no place in this country to which this provision of 50 miles can be applied. This country has sufficiently advanced to make 0.16 R.19 C. P. C. look clumsy. The power to summon witnesses must be so modernised as to keep pace with current modes of quick transport by air. When New York and Moscow are close to Delhi and Bombay jet-separated only by a day or two, it is extraordinary that the Code of Civil Procedure should talk in terms of road, rail and steamer communication only. Be that as it may, I have to bow reluctantly to 0.16 R.19 C. P. C. and hold that since even the Trivandrum expert is more than 200 miles away from the court, its writ cannot run to compel his attendance. In this view, the Subordinate Judge's direction to the trial court that the witnesses should be examined in court has to be set aside unless the witnesses consent to come. In substitution, I can only direct that if the experts can be persuaded to appear in court and subject themselves to cross-examination, the court may resort to that step. But if they decline, the court may issue commissions for the examination of these three witnesses, not by the medium of interrogatories but by oral examination. 5. The learned Subordinate Judge has considered the probabilities of the case and expressed himself on them. But if they decline, the court may issue commissions for the examination of these three witnesses, not by the medium of interrogatories but by oral examination. 5. The learned Subordinate Judge has considered the probabilities of the case and expressed himself on them. Having earlier decided to remand the case, it was, not quite fair to record pronounced opinions on the probabilities as that would embarrass the trial court. I would, therefore, further direct the trial court to dispose of the suit untrammelled by the observations of the Subordinate Judge on the veracity of the witnesses and the merits of the case. 6. There was some discussion at the bar about the observations by the Subordinate Judge in a critical tone about the comparison of signatures by the learned munsiff himself. The legal position may be briefly indicated by me in this context. "while the Court has jurisdiction to consider from the materials on record whether the disputed signature is that of the party whose admitted signature is before Court: "conclusions based on mere comparison of handwriting must, at best, be indecisive, and yield to the positive evidence in the case. The court cannot solely or exclusively base the conclusions one way or other on the basis of the impression gathered by a comparison of signature alone", The learned Munsiff will remember these guidelines when dealing with this suit. 7. Counsel on both sides have fairly conceded that in the light of this unsatisfactory state of affairs a retrial by the Munsiff's Court has become necessary. A preliminary attempt to see if the parties were inclined to come to terms, since the subject matter of the suit would be less than what the parties would have to spend for examining the three experts, proved ineffective. In the present mood of the parties, they are prepared to fight, particularly because the reason for the suit, according to the defendant, is the refusal of his son to marry the plaintiff's daughter. Litigation is sometimes an occasion for letting off steam or paying off old scores and often times intoxicating; but then courts should not countenance these antisocial purposes. That was why I tried, through counsel, to suggest to the parties to reach some rough and ready adjustment in the peculiar circumstances and difficulties of this case. They have declined to do so and deserve the vexation of litigation. That was why I tried, through counsel, to suggest to the parties to reach some rough and ready adjustment in the peculiar circumstances and difficulties of this case. They have declined to do so and deserve the vexation of litigation. I confirm the order of remand made by the Subordinate Judge's Court. Both parties will be given reasonable opportunity to adduce additional evidence, documentary and oral. The trial will be according to law and subject to the observations and directions made by me above. Costs will be costs in the cause. A copy of this judgment may be placed before the Rules Committee.