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2009 DIGILAW 442 (AP)

M. Ramesh Babu v. M. Sreedhar

2009-07-10

B.CHANDRA KUMAR, P.S.NARAYANA

body2009
Judgment : B. Chandra Kumar, J. This revision arises out of the order passed in I.A. No.842 of 2008 in O.S. No. 149 of 2002, dated 16.09.2008, by the learned Senior Civil Judge, Madanapalli, Chittoor District. 2. The petitioner herein is the petitioner in I.A. No. 842 of 2008 and the plaintiff in the main suit. The respondent herein is the respondent in I.A. No. 842 of 2008 and the defendant in the main suit. The parties will be referred as they are arrayed in the lower Court for the sake of convenience. 3. The brief facts necessary for disposal of this revision are as follows. The petitioner had filed the suit in O.S. No. 149 of 2002 on the file of the Senior Civil Judge, Madanapalle (hereinafter referred to as 'lower Court'), against the respondent for recovery of Rs.1,63,400/- basing on a pronote, said to have been executed by the respondent on 31.12.1999. The petitioner's case is that the respondent borrowed Rs.95,000/- from him and executed a pronote on 31.12.1999, marked as Ex.A1, in the presence of attestors, namely Jagadishwar and Rajendra Prasad and subsequently failed to pay the amount. The main contention of the respondent is that he had not borrowed the amount from the petitioner and that the said promissory note is a rank forgery. 4. On behalf of the petitioner, the petitioner himself had been examined as PW.1 and one of the attestors of Ex.A1 had been examined as PW.2. At the instance of the respondent, Ex.A1 pronote was sent to Pt. Ashok Kashyap, the handwriting expert, who in his report Ex.C5 opined that the disputed signature marked in Ex.A1 is a forged one. Then the respondent had been examined as DW.1 and the handwriting expert Pt. Ashok Kashyap had been examined as DW.2 and certain documents had been marked. 5. Then the petitioner filed I.A. No.842 of 2008, under Order XXVI Rule 10-A CPC, seeking a direction to send the suit promissory note Ex.A1 to any Government handwriting expert for comparison of the disputed signatures in Ex.A1 with that of the admitted signatures of the respondent available in the documents marked as Exs.C1 to C4 and Exs.X1 to X4. 5. Then the petitioner filed I.A. No.842 of 2008, under Order XXVI Rule 10-A CPC, seeking a direction to send the suit promissory note Ex.A1 to any Government handwriting expert for comparison of the disputed signatures in Ex.A1 with that of the admitted signatures of the respondent available in the documents marked as Exs.C1 to C4 and Exs.X1 to X4. The main contention of the petitioner is that the respondent is in the habit of signing in different styles in each document with different spelling and the same had been admitted by the handwriting expert and that certain documents containing the signatures of the respondent had been marked on behalf of the petitioner as Exs.C1 to C4 and Ex.X1 to X4 which are available in the Court file, and that the specimen signatures S-1 to S-9 are not similar and that DW.2, the handwriting expert, had not properly compared the disputed signatures with that of the admitted signatures of the respondent. The main contention of the respondent is that Ex.A1 was already sent to the handwriting expert, who had given his opinion and that merely because the opinion of the handwriting expert is against to the wish of the petitioner, the opinion of the second expert cannot be taken, more over when the petitioner had been given an opportunity to cross-examine the handwriting expert at length and nothing had been elicited from his evidence. It is also the case of the respondent that the petitioner cannot seek the opinion of the second expert and such a course is not permissible in law. 6. The learned Senior Civil Judge observed that the pronote Ex.A1 had been already sent to the handwriting expert, who is a popular and renowned handwriting expert and that the said expert had given sound reasoning for the conclusions arrived at by him and that the said report is not set aside by the Court. The learned Judge also further observed that the settled legal position is that the opinion of the second expert can be sought for only when there are grave irregularities in the opinion of the first expert or when the Court comes to a conclusion that the opinion of the expert is biased and that in the absence of any such allegations, the opinion of the second expert cannot be sought for. It was also observed that the petition was filed belatedly after the evidence of both sides almost completed and that the petition had been thought of only to procrastinate the proceedings. 7. In Kushal Rao v. Shyam Rao ( 1997 (1) ALT 93 ), and in R. Bhaskar Reddy and another v. Chinni @ Chengal Reddy and others ( 1998 (2) ALT 384 ), it was held that an appointment of second commissioner for the same purpose without rejecting the report of the first commissioner and without recording reasons for so rejecting cannot be sustained, and in Korvi Rosaiah v. Mitta Srinivasa Reddy (2006 (3) ALT 605), it was held that sending a document to an expert for comparing the admitted signatures with the disputed signatures for the second time is permissible. Having regard to the above contradictory views, one of us Hon'ble Sri Justice P.S. Narayana had opined that the said controversy should be resolved by any appropriate Division Bench in accordance with law. Accordingly, the matter was placed before the Hon'ble the Chief Justice and the Hon'ble the Chief Justice constituted this Bench for disposal of the matter, and, thus, this matter came up before us. 8. Sri Gopala Krishna, learned counsel for the petitioner, submitted that under Sub-Rule (3) of Rule 10 of Order XXVI CPC, if the Court is dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit and that the opinion of the second expert may be obtained. It is further submitted that there is lot of difference in the procedure being followed by a Commissioner appointed under Rule 9 of Order XXVI and under Rule 10-A of Order XXVI CPC. It is his submission that when a commissioner is appointed under Rule 9 of Order XXVI, the Advocate Commissioner would give notice to both the parties and that the parties and/or their counsel would be present and furnish work memos to the Advocate Commissioner. Thus, the Advocate Commissioner, while executing the warrant under Rule 9 of Order XXVI CPC, would conduct his proceedings in the presence of both the parties and their advocates, whereas when the opinion of an expert is sought he would conduct his proceedings and give his opinion in the absence of the parties and their counsel. Thus, the Advocate Commissioner, while executing the warrant under Rule 9 of Order XXVI CPC, would conduct his proceedings in the presence of both the parties and their advocates, whereas when the opinion of an expert is sought he would conduct his proceedings and give his opinion in the absence of the parties and their counsel. Thus neither the parties nor their counsel would have an opportunity to participate in the proceedings of the expert. It is also submitted that as per Section 46 of the Indian Evidence Act relevancy of facts bearing upon the opinions of experts, but there is no such reference to the relevancy of facts in Rule 9 of Order XXVI CPC. It is also argued that the report of the Commissioner is taken as evidence in the suit and shall form part of the record and the Court or with the permission of the Court any of the parties to the suit may examine the Commissioner in the Court, but as far as the opinion of the expert is concerned it is one of the relevant facts under Section 45 of the Indian Evidence Act. Thus, his main submission is that Section 45 of the Indian Evidence Act is the substantive law, whereas Order XXVI Rule 9 CPC is procedural law. Thus there is much difference between Order XXVI Rule 9 and Order XXVI Rule 10-A read with Section 45 of the Indian Evidence Act. It is his main submission that if any other material other than previously sent is available the opinion of the second expert can be obtained. In support of his contentions Sri Gopal Krishna had placed reliance on a decision of the Kerala High Court reported in Hydru v. Govindankutty (AIR 1982 Kerala 49). It is also his submission that a report of the expert has to be proved under the provisions of Sections 61 to 66 of the Indian Evidence Act. 9. Sri Gopala Krishna further submitted that the expert marked exhibits S-1 to S-9 the specimen signatures and that S-10 and S-11 the admitted signatures on Xerox copies and that the expert compared the disputed signatures with the signatures available on the Xerox copies of S-10 and S-11 and that when 10 admitted signatures were sent, no reason had been assigned for not comparing the disputed signatures with all the signatures sent. It is further submitted that the expert had selected admitted signatures in a pick and choose manner. It is also submitted that the admitted signatures i.e., Exs.C1 to C4 and X1 to X4 were not available when S-1 to S-11 were sent to the expert. His further submission is that since Exs.C1 to C4 and X1 to X4 admitted signatures had been signed by the respondent during the Court proceedings in the open Court, such signatures are proved to be admitted signatures which have to be sent to the expert under Section 73 of the Indian Evidence Act. Reliance was also placed on the recent decision of this Court in Korvi Rosaiah's case (3 supra), wherein the learned Judge of this Court opined that when there is an allegation that the disputed signatures were deliberately signed in a different fashion the admitted signatures taken before arising of the dispute between the parties can be sent to another expert for his opinion. Thus the main contention of Sri Gopala Krishna is that where the circumstances warrant in the interest of justice the opinion of second expert can be obtained particularly when additional material is available. 10. It is his further submission that when the report of the expert itself is a mere proceeding there is no need to express dissatisfaction. Referring to Sub-Rule (3) of Rule 10 and Sub-Rule (2) of Rule 12, the learned counsel submits that in Sub-Rule (2) of Rule 12 the words 'proceedings' and 'report' both have been used, whereas in Sub-Rule (3) of Rule 10 the word 'proceedings' alone has been used and, therefore, the Court even without expressing its opinion about the report if dissatisfied with the proceedings can direct further enquiry. It is also his submission that there should be some safeguard to the parties and filing of objections is not applicable in case of expert opinion. The learned counsel also vehemently argued that for arriving at truth and for doing complete justice, the opinion of the second expert must be obtained. It is also his submission that seeking of the opinion of the second expert is not for the purpose of filling up of any gaps but to establish the truth and to rebut the false contention of the respondent that the signature in Ex.A1 is forged one. 11. It is also his submission that seeking of the opinion of the second expert is not for the purpose of filling up of any gaps but to establish the truth and to rebut the false contention of the respondent that the signature in Ex.A1 is forged one. 11. Sri Subhash, Advocate, representing Sri K. Suresh Kumar Reddy, learned counsel for the respondent, submitted that the decision in Korvi Rosaiah's case (3 supra) cannot be treated as the law laid down by this Court, in view of the earlier decisions of this Court reported in R. Bhaskar Reddy's case (2 supra) and in Kushal Rao's case (1 supra). His main submission is that the constant judicial view is that the opinion of the second expert cannot be obtained once the opinion of an expert had already been obtained. It is also submitted that in fact the trial in the lower Court is almost over and at that stage the petitioner filed this petition to send Ex.A1 to the second expert and that all the decisions dealing with Order XXVI Rule 9 CPC are applicable to the scientific investigation i.e., expert opinion falling under Order XXVI Rule 10-A and that if the claim of the petitioner is accepted then the parties would take advantage of the same and seek the opinions. It is further submitted that if the petitioner is not satisfied with the report of the expert he should have filed objections and requested the Court to reject the opinion of the expert. His main submission is that without rejecting the earlier report of the expert, the report of the second expert cannot be sought for. The learned counsel had relied on R. Bhaskar Reddy's case (2 supra) and also on Kushal Rao's case (1 supra) in support of his submission. The counsel also submitted that the expert was already cross-examined and after two years of the report of the expert now the petition is filed for sending the document for the opinion of the second expert. 12. The point that arises for consideration is whether the opinion of second expert can be sought for without setting aside the earlier report, if so under what circumstances? 13. It is not in dispute that Ex.A1 had been sent to the handwriting expert and he had given his opinion marked as Ex.C5. 12. The point that arises for consideration is whether the opinion of second expert can be sought for without setting aside the earlier report, if so under what circumstances? 13. It is not in dispute that Ex.A1 had been sent to the handwriting expert and he had given his opinion marked as Ex.C5. As seen from the contents of Ex.C5 the handwriting expert marked the disputed signature of the respondent on the promissory note as Ex.Q1 and the specimen signatures of the respondent as S- 1 to S-9 and his admitted signatures dated 01.09.1997 and 28.08.2000 as S-10 and S-11 respectively on two separate share certificates. Certain peculiar facts have surfaced in the cross-examination of the expert. The expert (DW.2) admitted in his cross-examination as follows. "It is true that there are five signatures on first sheet and five signatures in the second sheet. I have got marked the five signatures on the first sheet as S-1 to S-5 and the first four signatures in the second sheet as S-6 to S-9. I have not marked the last signature following the S-9. The voluntary of the 9 signatures are enough for comparison. I did not mention the last signature in my report for comparison sent by the Court. I have not stored the photographs in my computers. I have only verified the signatures purported to have been made by M. Sreedhar in the Xerox copies of the share deeds. In the portion marked as S-11 containing the signature of 'Sreedhar Mulabagala dated 28.08.2000' and he has signed as 'Shreedhar M.' In the portion marked as S-10 he has signed as 'Sridhar M.' As seen from S-10 and S-11 he is in the habit of signing as 'Shreedhar M.' and also 'Sridhar M.' It appears that the same person is in the habit of writing signatures with two different spellings. The letter 'S' in S-10 and S-11 is not identical, and also there is a variation in the word 'a' in S-10 and S-11. However the witness adds that it is a natural variation. It is true that there is difference in writing of the word 'r' in the last word signature of Sreedhar in S-10 and S-11. It is true that in S-1 to S-9 the location of 'M' is at the beginning, whereas in S-10 and S-11 he had written at the end. It is true that there is difference in writing of the word 'r' in the last word signature of Sreedhar in S-10 and S-11. It is true that in S-1 to S-9 the location of 'M' is at the beginning, whereas in S-10 and S-11 he had written at the end. The speed in S-1 to S-9 is slightly faster than S-10 and S-11 but it could be deliberate." 14. It may be relevant to refer to the evidence of DW1 Sreedhar. DW.1 had denied the suggestion that with a desire and deliberately he changed his style of signatures not only to avoid the payment but also to mislead the Court. Of course he had also denied the suggestion that he managed the handwriting expert Pt. Ashok Kashyap to give opinion in his favour. When DW.1 had been examined on 22.02.2007, Exs.C1 to C4 had been marked. Exs.C2 and C3 are the Photostat copies of the certificates dated 14.07.2005 and Ex.C4 is the Photostat copy of the report of the Directors dated 01.09.1997 containing the signatures of DW.1. Exs.X1 to X4 seem to be the record of the Court bearing the signatures of the respondent. The admitted case of the respondent is that he is in the habit of writing signatures in different spellings and there is different style of signatures in admitted and specimen signatures. Thus, it is clear that the respondent had signed with different spellings with different speed on different occasions. The opinion of the expert that certain words such as 'a', 'd', 'r', 'i', and 's' in S10 and S-11 as natural variation has to be carefully examined. The Court has to depend upon the opinion of expert in many cases. Of course, the Court can form its own opinion and come to an independent conclusion, but at the same time the opinion of an expert would have great impact in forming an opinion by the Court. In view of the different opinions expressed by various courts and by the learned Judges of this Court it became necessary to examine the whole issue in detail. 15. The common opinion of the Courts appears to be that the evidence of handwriting expert must be received with great caution. In Bhargav K. Salunkhe v. State of Maharashtra (1996 Cri LJ 1228, 1232 (Bombay)), it was held that evidence of handwriting expert must always be received with great caution. 15. The common opinion of the Courts appears to be that the evidence of handwriting expert must be received with great caution. In Bhargav K. Salunkhe v. State of Maharashtra (1996 Cri LJ 1228, 1232 (Bombay)), it was held that evidence of handwriting expert must always be received with great caution. In State of Maharashtra v. Sukhdeo Singh ( AIR 1992 SC 2100 ), the Supreme Court held that science of identification of handwriting is an imperfect and frail one, and the same needs corroboration. It was further held that although the section specifically empowers the Court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. 16. Thus, the second legal opinion of an expert appears to be a weakest and the least reliable evidence and it is not at all safe to base conviction upon the opinion of handwriting expert alone. Courts have refused to act upon the evidence of expert unless it is corroborated by independent evidence. 17. As early as in 1933, in a case reported in Diwan Singh v. Emperor (AIR 1933 Lahore 561), it was observed as follows. ".............In this connection it will be interesting to refer to a passage at p.127 of Ryen of Criminal Evidence in India, which has been cited with approval by a Division Bench of this Court presided over by the Hon'ble the Chief Justice and Leslie-Jones, J., in Hari Singh v. Lachmi Devi (4), (at p.226 of 59 I.C.): "It must be borne in mind that an expert witness, however, impartially he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to an expert witness is unconsciously impelled to support the view taken by his own side. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to an expert witness is unconsciously impelled to support the view taken by his own side. Besides, it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests." Similarly, Taylor in his great work on the "Law of Evidence," (Edn.12), Vol.1, p.59, para. 58, observes: "Perhaps the testimony which least deserves credit with a jury is that of skilled witnesses. These witnesses are usually required to speak, not to facts, but to opinions; and when this is the case, it is often quite surprising to see with what facility, and to what an extent, their views can be made to correspond when the wishes or the interests of the parties who call them. They do not, indeed, willfully misrepresent what they think, but their judgments become so warped by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of forming an independent opinion. Being zealous partisans, their belief becomes synonymous with faith as defined by the apostles, and it too often is; but 'the substance of things hoped for, the evidence of things not seen'." 18. In Abhayanand v. State of Bihar (AIR 1959 Patna 328), it was held that the opinion of an expert under Section 45 of the Evidence Act engaged by a party suffers from the defect that it is given by a remunerated witness. He knows beforehand why he has been called and what the party calling him wishes to be proved. It is not improbable that he has an unconscious bias in favour of the party. These circumstances to great extent detract from the weight to be attached to such witness's opinion. 19. He knows beforehand why he has been called and what the party calling him wishes to be proved. It is not improbable that he has an unconscious bias in favour of the party. These circumstances to great extent detract from the weight to be attached to such witness's opinion. 19. In B. Poornaish v. Union of India ( AIR 1967 A.P. 338 ), a Division Bench of this Court while dealing with expert's opinion under Section 45 of the Evidence Act observed that agreeing to the document being marked by consent certainly did not mean that the plaintiff accepted the correctness of every statement made by the expert and the opinion of an expert must be given orally and that a mere report or certificate by him cannot possibly be evidence unless statute so provides. 20. The Kerala High Court in Hydru v. Govindankutty's case (4 supra) while discussing Order XXVI Rule 10 CPC and Section 45 of the Evidence Act observed that whether it be under Order XXVI or under Section 45 of the Evidence Act, there is no prohibition as such against making a second reference to a handwriting expert without setting aside the report of the first; the Court has a discretion in the matter. Of course it was further observed that to say so is not to handover to the alcoholic the key of the distillery and to permit the trial Courts to issue commissions galore, but only to distinguish a matter of practice from a matter of law. The discretion is there, of course, to be used with circumspection. It was further observed that Sub-Rule (3) of Rule 10 does not specifically provide for wiping out evidence which is already part of the record; it only contemplates a further enquiry and therefore a further report, which will also become evidence and part of the record by virtue of Sub-Rule (2). Sub-Rule 2 of Rule 10 envisages that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. Thus language of Sub-Rule 3 of Rule 10 does not provide for setting aside a report and issuing a new or second commission. It was further observed as follows. Sub-Rule 2 of Rule 10 envisages that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. Thus language of Sub-Rule 3 of Rule 10 does not provide for setting aside a report and issuing a new or second commission. It was further observed as follows. "Very recently we have been hearing such experts speaking in different voices as to the possible effect on ecology if a hydroelectric project is to be set up in the Silent Valley. Divergent views were expressed by engineers about the possible methods for strengthening the Mullapperiyer Dam. Why should anyone insist that the court can have the assistance of only one scientific expert at a time? The proceedings of one expert may not be wholly useless; still the Court may consider another report helpful." 21. In Chhotu v. Gurbhajan (AIR 1972 P & H 265), it was held that if a Court is dissatisfied with a Commissioner's report it can issue another commission, but the report of the first commissioner cannot be wiped out of record. 22. The Kerala High Court in K.L.D.M. & M.M. Board Ltd. V. Achuthan (2001 (1) KLT 440 (445) (Ker)), held that the Court may issue a second commission for collecting more details if considered necessary without setting aside the report of the first commission. 23. In Gopalakrishnan v. P. Shanmugam (AIR 1995 Madras 274), the Madras High Court observed that mechanical and indiscriminate appointment of more than one commission, merely because the Court thinks the other party to the proceedings may not be prejudiced or that the expenses for the commission are going to be borne by the applicant for the purpose would create an unhealthy practice of not only more than one report on records, but also would lead to the vice of a person or party to the proceedings not being satisfied with the commissioner's report seeking for the appointment of successive commissioners till he is able to get a report of his choice. 24. In Dr. P. Subramaniam v. KSE Board (AIR 1988 Kerala 169), it was observed that it would not be appropriate to hold that under no circumstances could a Court issue a second commission, without setting aside the report of the first. 24. In Dr. P. Subramaniam v. KSE Board (AIR 1988 Kerala 169), it was observed that it would not be appropriate to hold that under no circumstances could a Court issue a second commission, without setting aside the report of the first. As far as the comparison of signatures are concerned, the signature marked on Xerox copy of a document can never constitute the basis. The opinion of a handwriting expert involves the analysis of the slant, which a person uses in the matter of putting his signature, and in some cases, the point of time, at which it may have been subscribed. These analysis would become possible only vis-à-vis an original signature. 25. In Chockalingapuram Thevangar Vardhaga Sangam v. Chokkanathaswami Temple (AIR 1996 Madras 148), it is held as follows. "..................The Court which is concerned, with the adjudication of an issue before it, is the best judge to decide the need or necessity to appoint a commissioner, and that too, when it is asked for a second time. If the Court is satisfied with the request, in the interest of justice to both parties, it can always proceed to set in a given case at the given stage, within the frame work of its powers as envisaged in the code and particularly under sub-rule (3) of Rule 10 of O.26 CPC is noticed above, it will always depend upon the facts and circumstances of the case before it. If only there is any abuse or failure to exercise its discretion properly or there is any patent error in its exercise of discretion, it is always open to this Court to interfere even at this stage of the proceedings.........." 26. In P. Sood & Co. v. Peerchand Misrimalji Bhansali (2005(3) CTC 12), a Division Bench of the Madras High Court opined that the practice of sending original documents in the custody of the Courts to the handwriting experts is highly objectionable one and a very bad procedure. It was further observed that proper procedure would be to permit the handwriting expert to inspect the document in the Court premises itself in the presence of some responsible officers of the Court and if necessary the expert may be permitted to have photographic copies of the documents in the presence of the responsible officers of the Court. 27. It was further observed that proper procedure would be to permit the handwriting expert to inspect the document in the Court premises itself in the presence of some responsible officers of the Court and if necessary the expert may be permitted to have photographic copies of the documents in the presence of the responsible officers of the Court. 27. The Division Bench of Kerala High Court, in Swami Premananda Bharathi v. Swami Yogananda Bharathi (AIR 1985 Kerala 83), while dealing with Order XXVI Rules 11 and 12 i.e., appointment of commissioner for auditing accounts opined that appointment of second commissioner before superseding first commissioner's report and proceedings is illegal and jurisdictional error. It is to be noted that the said decision was not dealing with the report of the expert under Rule 10-A. 28. The learned Judge of this Court in Kushal Rao's case (1 supra) observed that there is no provision under Order XXVI of the Code for appointing more than one Commissioner or to reject the report of the Commissioners and evidence without any justification. "As a normal rule, two separate commissions should not be issued to deal with one and the same subject and to treat the report of both the Commissioners as evidence in the case. It is only when the report of the first Commissioner is unsatisfactory and the Court is dissatisfied with his proceedings, that a second Commissioner could be appointed under the provisions of Order XXVI Rule 10 Sub-Rule (3)". Rule 10-A was not considered in the said decision. The commissioner was appointed to assess the mesne profits in that case. The learned Judge himself observed that when the report of the first Commissioner is unsatisfactory and the Court is dissatisfied with his proceedings, that a second commission could be appointed under the provisions of Order XXVI Rule 10 Sub-rule (3). Therefore, even according to this decision there is no bar to issue a second commission or to seek the opinion of the second expert when the Court is dissatisfied with the proceedings of the Commissioner. 29. In R. Bhaskar Reddy's case (2 supra), this Court, while dealing with Section 45 of the Evidence Act, observed that the party cannot seek sending of document to another expert on the ground that opinion of first expert is against him. This Court further observed as follows. 29. In R. Bhaskar Reddy's case (2 supra), this Court, while dealing with Section 45 of the Evidence Act, observed that the party cannot seek sending of document to another expert on the ground that opinion of first expert is against him. This Court further observed as follows. "In my view, if the petition is allowed to send the document to another expert and if the opinion of the second expert also goes against the petitioners they may ask for sending the document to third expert and so on and so forth and there will be no end. It is pointed out that the petitioners have ample opportunity to cross-examine the expert and elicit information from him. Therefore, the learned Judge is right in rejecting the application of petitioners." 30. While dealing with Section 45 of the Evidence Act, in Korvi Rosaiah's case (3 supra), this Court, having considered the earlier decision in R. Bhaskar Reddy's case (2 supra), opined that no exception can be taken for the orders for seeking opinion of a second expert. Relevant paras are as follows. "The signature of the petitioner on the vakalat was found to be at variance with the one on the promissory note. The respondent suspected that the petitioner has deliberately changed the pattern of his signature on the vakalat. It was in this context that he wanted the signature of the petitioner on a loan application form, which has nothing to do with the suit transaction, to be compared with the one on the promissory note. Such a course would result in a valid and genuine exercise, under Section 45 of the Act. No prejudice can be said to have been caused to the petitioner. In the decision cited supra, this Court held that a party cannot seek opinion from another expert, if the earlier was not favourable to him. In that case, a second opinion was sought with reference to the same set of signatures i.e., the admitted and disputed ones. In the instant case, it is not so. The respondent entertained a doubt as to the genuinity of the very signature on the promissory note." 31. As far as scientific investigation is concerned, it may be difficult for any Court to substitute its opinion. In the instant case, it is not so. The respondent entertained a doubt as to the genuinity of the very signature on the promissory note." 31. As far as scientific investigation is concerned, it may be difficult for any Court to substitute its opinion. Whether the expert has followed the correct procedure or not, whether the expert's opinion is based on sound reasoning or not, whether the expert has committed any grave error or not, and whether the expert's opinion is biased in favour of one party or not cannot be judged unless the same is critically examined. Special knowledge and skills are necessary. As far as handwriting and signatures are concerned whether there are any traces of tremor, hesitation, careful retouching, careful pen lifting present or not have to be examined, because such things are usually present when a forger attempts to copy the writing of another person. These circumstances were not taken into consideration in R. Bhaskara Reddy's case referred to above. 32. Section 45 of the Indian Evidence Act (Act 1 of 1872) deals with the opinions of third persons when relevant, which is as follows. S.45. Opinions of experts.- When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts. 33. It has to be seen that plural words have been used in the above section. The words used are the 'opinions' upon that point of 'persons' specially skilled, again the words such 'persons' are called 'experts'. The use of plural words appears to be deliberate. Opinion of the person is not used. 'Various opinions' of the 'persons' have been specifically used. 34. Section 46 of the Indian Evidence Act is as follows. S.46. Facts bearing upon opinions of experts.-Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. 35. Let us examine the relevant provisions for coming to a reasonable conclusion. Rule 9 of Order XXVI deals with the commission for local investigations and Rule 10 is the procedure prescribed for the Commissioner while executing the warrant. 35. Let us examine the relevant provisions for coming to a reasonable conclusion. Rule 9 of Order XXVI deals with the commission for local investigations and Rule 10 is the procedure prescribed for the Commissioner while executing the warrant. Rule 10 of Order XXVI is as follows. "10. (1) Procedure of Commissioner.-The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the court. (2) Report and depositions to be evidence in suit.-The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the court, any of the parties to the suit may examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Commissioner may be examined in person.-Where the court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit." 36. Order XXVI Rule 10-A deals with the commission for scientific investigation which is as follows. "10A. Commission for scientific investigation.-(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the court. (2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9." 37. Rules 10-A, 10-B and 10-C have been newly inserted by CPC amendment Act 104 of 1976 with effect from 01.02.1977. Rule 11 deals with the Commission to examine or adjust accounts. 38. Rule 12(1) deals with the instructions to be given to the Commissioner by the Court and sub-rule (2) of Rule 12 is as follows. Rules 10-A, 10-B and 10-C have been newly inserted by CPC amendment Act 104 of 1976 with effect from 01.02.1977. Rule 11 deals with the Commission to examine or adjust accounts. 38. Rule 12(1) deals with the instructions to be given to the Commissioner by the Court and sub-rule (2) of Rule 12 is as follows. "(2) Proceedings and report to be evidence, court may direct further inquiry.-The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit." 39. Rule 13 deals with the Commission to make partition of immovable property. Rule 14 deals with the procedure to be adopted by the Commissioner appointed under Rule 12. Sub-rule (3) of Rule 14 is as follows. "Where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit." 40. A reading of all these rules gives an impression that as far as commission for scientific investigation under Rule 10-A is concerned, it is clear that only the provisions of Rule 10 shall, as far as they may apply in relation to a Commissioner appointed under Rule 10-A as they apply in relation to a Commissioner appointed under Rule 9. Thus, the relevant rules are only 9 and 10. It appears that sub-rule (2) of Rule 12 is applicable when the commission is appointed to examine accounts. Similarly sub-rule (3) of Rule 14 is applicable when a commission is appointed to make partition of immovable property. Therefore, those rules are not applicable when a matter is referred for scientific investigation under Rule10-A. Therefore, the decisions dealing under Rules 11 to 14 may not be applicable to this case. 41. Similarly, the provisions of Rule 10 may be applied as far as they may apply in relation to commissioner appointed under Rule 10-A as they apply in relation to commissioner appointed under Rule 9. Therefore, the limited scope of Rule 10-A should be kept in mind. 41. Similarly, the provisions of Rule 10 may be applied as far as they may apply in relation to commissioner appointed under Rule 10-A as they apply in relation to commissioner appointed under Rule 9. Therefore, the limited scope of Rule 10-A should be kept in mind. There is nothing under Rule 10-A or Rule 10 to set aside the report of an expert before entrusting the work to another expert. Since under Sub-rule (2) of Rule 10 the report of the commissioner and the evidence taken by him shall be the evidence in the suit and shall form part of the record, the reports cannot be rejected whether it is first or second. The second commissioner can be appointed only when the Court is dissatisfied with the proceedings of the earlier commission. 42. Therefore, a combined reading of Rule 10-A and Sub-Rule (3) of Rule 10 and Sub-Rule (2) of Rule 12 gives an impression that the report of the Commissioner is part of the record of the Court and if the Court is not satisfied with the proceedings and report of the commissioner it may direct such further enquiry which include the issuing of second commission for the same purpose. 43. In West's Legal Thesaurus Dictionary, the meaning of proceedings is given as follows. "Proceeding, n.1. The form or manner of conducting business before a court, agency, or other organization (adjudicative proceeding). Steps, conduct, course, mode, process, procedure, method, system, progress, measure, way, methodology. 2. A litigation (contempt proceeding). Case, action, prosecution, suit, trial hearing, lawsuit, cause, inquest, inquiry. 3. A sequence of events (an account of the proceedings). Happenings, affairs, actions, occurrences, agenda, goings-on, concerns, dealings, deeds, incidents, transactions, matters. 4. A record of what takes place at a meeting (the proceedings are kept in the file). Minutes, memoranda, archives." Shorter Oxford Dictionary defines 'Proceedings' as follows. "Carrying on of an action at law, a legal action or process, any act done by authority of a Court of alw; any step taken in a cause by either party." 44. Sub-Rule (3) of Rule 10 envisages that where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. Sub-Rule (3) of Rule 10 envisages that where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. There is nothing in this rule which suggest setting aside the earlier report or totally scrapping the earlier report, more over Sub-Rule (2) of Rule 10 provides that the report of the Commissioner shall form part of the record and shall be evidence in suit. The evidence has to be appreciated basing on the settled legal principles. 45. Sub-Rule (2) of Rule 12 also provides that where the Court is dissatisfied with the proceedings and report of the Commissioner, it may direct such further inquiry as it shall think fit. Therefore, further enquiry has been contemplated under both the provisions. It means, further enquiry is authorized by law, if the Court is dissatisfied with the report or the proceedings of the Commissioner. There is nothing in law, which prohibits issue of second commission, more over where it appears that the Court would have advantage of considering the evidence or report of both the experts. 46. The expert opinion cannot be and should not be considered as gospel truth. Error is human. However high one person may be, it does not mean that he cannot commit any mistake. The evidence has to be appreciated without any prejudice. The Courts should not be influenced by the reputation, name and fame or influence of a witness. As far as the Courts are concerned, a witness is a witness. His evidence has to be considered on the touch stone of probabilities and circumstances and when the evidence is put to critical examination with rational outlook it may reveal whether such witness is a reliable witness or not. Then the Court would form an opinion whether to accept such evidence in toto or to reject the same or to accept it in part and reject the same in part. 47. The ultimate object of the Court should be to find out the truth. One party may assert the existence of a fact and other party may deny the same. The parties are allowed to lead evidence to establish their case. Evidence means and includes all statements which the Court permits or required to be made before it by witnesses in relation to matters of fact under inquiry. One party may assert the existence of a fact and other party may deny the same. The parties are allowed to lead evidence to establish their case. Evidence means and includes all statements which the Court permits or required to be made before it by witnesses in relation to matters of fact under inquiry. Evidence may be oral or documentary. All documents including electronic records produced for the inspection of the Court are called documentary evidence. When a party intends to adduce evidence in support of its contention i.e., to prove its contention or disprove the contention of opposite party, the doors of the Court shall not be closed at the stage of trial. The parties should be allowed to adduce all relevant and necessary evidence oral and documentary. 48. As far as expert is concerned, who is a specialist in knowledge and experience he is expected to give correct opinion. The opinion of expert is sought with the special knowledge which they have obtained in the subject and with their rich experience they will be in a position to give their expertise opinion. The Courts consider the evidence of expert on various aspects such as with regard to the age of the injury, age of the document, age of the stamp, nature of weapon used in the commission of offence, and with regard to hand writing etc. The expert, having regard to several factors, gives his opinions. His opinions are drawn on the conclusions based on the material placed before him and scientifically considered by him. The evidence of expert generally depends upon certain observations made by him, which cannot be denied by anybody. However, we have seen in some cases wherein the opinions of the experts are not up to the mark. 49. There are basic differences in the methodology adopted by the experts. Even an expert may commit a mistake. When a mistake is committed by an expert, the other side Advocate, while cross-examining the expert, may point out those errors. But, some times, it may not be possible for the advocates to elicit those errors in the cross-examination due to lack of expertise knowledge. In such circumstances, great injustice may be done to the parties. Even the Court may not be in a position to detect those errors committed by an expert. But, some times, it may not be possible for the advocates to elicit those errors in the cross-examination due to lack of expertise knowledge. In such circumstances, great injustice may be done to the parties. Even the Court may not be in a position to detect those errors committed by an expert. It appears that another expert who has special knowledge in the subject may be in a position to point out those errors. Even, in any unfortunate situation, if an expert is won over by the party, then such a situation could be saved by obtaining opinion of another expert. Then the Court will have the advantage of looking into the reports of both the experts in such a situation. 50. It is argued that we will be opening Pandora's box if the parties are allowed to seek second opinion. As we have observed earlier it is the duty of the Court to ascertain the fact. The goal of the Court should be to find out the truth and for the purpose of arriving at a truth we may have to proceed a longer distance in a particular case. The procedural aspects should not come in the way of finding the truth. The procedural law should always be subvergent to the substantive law. Therefore, seeking the opinion of a second expert in such cases may be necessary for rendering complete justice. As far as Sections 45 and 46 of the Indian Evidence Act are concerned, the same is undoubtedly a part of substantive law and whereas the provisions under Order XXVI of CPC appear to be procedural. 51. Therefore, we are of the view that there is no bar to take the opinion of a second expert without setting aside the earlier report. However, it is not desirable to appoint second commissioner or to refer to the second expert without there being any valid reasons. There should be special circumstances and the Court must record its reasons for sending the document to the second expert or for appointing a second commissioner. If the circumstances warrant, the Court may appoint second commissioner or to seek the opinion of a second expert in the light of the language of Order XXVI Rule 10-A of CPC read with Section 45 of the Indian Evidence Act. If the circumstances warrant, the Court may appoint second commissioner or to seek the opinion of a second expert in the light of the language of Order XXVI Rule 10-A of CPC read with Section 45 of the Indian Evidence Act. The salient features, essentials and distinction between Order XXVI Rule 9 and Order XXVI Rule 10-A of CPC read with Section 45 of the Indian Evidence Act always to be kept in mind. We are in complete agreement with the opinion of the learned Judge in Korvi Rosaiah's case (3 supra). Moreover, we are of the view that the doors of the trial Court shall not be shut at the initial stage. The parties must be given full opportunity to adduce evidence and the other side must be given the same opportunity to adduce rebuttal evidence. 52. In the cases arising out of Prohibition and Excise Act, if the accused is aggrieved with the opinion of the expert then he will be given an opportunity to send another sample for the second opinion. Therefore, in cases where the Court is of the opinion that the report of the expert is not satisfactory, where the expert has not followed the required procedure, where the findings of the expert appears to be prima facie incorrect, where there is an error on the face of the record, where it appears that the commissioner or expert had acted in a partisan manner and where the deficiency in the report cannot be completed by the same Commissioner or expert or where the Court feels that referring the matter to second Commissioner would be useful for better appreciation of evidence and for reaching just conclusions, the Court may refer the matter to second commissioner or to the second expert for his opinion, even without setting aside the earlier report or opinion. 53. 53. Since there appears to be some truth in the allegation that the respondent had changed his style of signature from time to time and expert had not compared all the specimen signatures sent to him and in view of the variation between S-10 and S-11 and since Exs.C1 to C4 and Exs.X1 to X4 appear to have been obtained subsequently it may be just and reasonable to direct the second expert to examine these signatures and compare the same with the disputed signatures and such course would result in a valid and genuine exercise. 54. In this case, admittedly, there are certain peculiar circumstances as admitted by the expert as referred to above. Therefore, the lower Court seems to have committed an error in dismissing the petition. 55. In the peculiar circumstances of this case, we allow the revision and the order of the lower Court passed in I.A. No.842 of 2008 in O.S.No. 149 of 2002, dated 16.09.2008, is set aside and consequently I.A.No. 842 of 2008 stands allowed. In the circumstances, no costs.