JUDGMENT Subrata Talukdar, J. 1. The short point in this civil revisional application numbered as C.O. 250 of 2005 is the refusal by the learned 13th Additional District Court, Alipore by its order No. 30 dated 9th September 2004 in Original Suit No. 5 of 2001 to allow the petition filed by the defendants under Order 26 Rule 10A C.P.C for scientific investigation of the L.T.I of the executrix, Mohini Bala Dasi (since deceased). 2. The original suit was filed by the plaintiff under Section 276 of the Indian Succession Act for grant of probate in respect of Will dated 16th May, 1994 executed by the late Mohini Bala Dasi. The defendants, who are the present petitioners in C.O. No. 250 of 2005 filed their objection and hence the suit became contested and was transferred to the learned 13th Additional District Court, Alipore being registered as Original Suit No. 5 of 2001. 3. In the suit the defendants filed an application under the Order 26 Rule 10 read with Section 151 of the C.P.C. In the said application the defendant contended that the LTI of the executrix, Late Mohini Bala Dasi in the alleged will is required to be proved by scientific investigation qua the L.T.I of the executrix in a gift deed executed by her during her life time. 4. The learned Trial Court, upon contested hearing, arrived at the finding that in the light of the deposition on record it was never suggested to the PWs that the L.T.I of the executrix on the alleged will was forged. 5. The deposition of the witnesses on behalf of the plaintiff have been placed for consideration before this Court. 6. P.W.1, Bankim Bihari Ojha, the scribe of the Will he has stated that he knew the late Mohini Bala Dasi during her life time and used to look after her cases. He has further stated that in the month of Baisakh 1401 B.S Mohini Bala Dasi told him she will give some properties to her nephew, Parikshit Das as she had brought him up from her childhood. Upon being advised that she would have to complete formalities for executing the Will she came to the chamber of PW-1. PW-1 prepared a draft of the Will as per her instruction and handed the same over to her. Upon being advised that she would have to complete formalities for executing the Will she came to the chamber of PW-1. PW-1 prepared a draft of the Will as per her instruction and handed the same over to her. P.W.1 recognized the Will in Court and deposed that all three witnesses put their signature on the Will in presence of the executrix. 7. In respect of the L.T.I of Mohini Bala Dasi he has deposed as follows:- “Not a fact that Mohini Bala Dasi never executed the will. At that time Mohini Bala Dasi was mentally alert and physically fit. Not a fact that will is collusive one. Not a fact that the L.T.I on the impugned will is not the L.T.I. of Mohini Bala Dasi. I knew the husband of Mohini Bala Dasi.” 8. P.W.2, who is an attesting witness to the Will has deposed as follows:- “After writing the will the scribe read it over before Mohini Bala Dasi and us. Mohini Bala Dasi thereafter put her L.T.I. on the will taken by Bankim Ojha. Thereafter we, the witnesses put a signature on the will. This is the said will marked exhibit-1 and exhibit ½ is my signature. We saw Mohini Bala Dasi to put her L.T.I on the will and Mohini Bala Dasi also saw us sign on the will.” At the time of execution of Mohini Bala was mentally alert and physically fit.” 9. In his cross-examination P.W.2 stated as follows:- “After execution of the will I have seen the same in Court today for the second time. The will was handed over to Mohini Bala Dasi after execution. Not a fact that on the impugned date of execution of the will Mohini Bala was ill and lying bed-ridden. Not a fact that the recital of the will was not read over to Mohini Bala. Not a fact that the Mohini Bala did not put her L.T.I before us. Not a fact that we have created this will on a paper where the L.T.I. of Mohini Bala was affixed. Not a fact that we, the witnesses did not put our signatures on the will in the presence of Mohini Bala. Not a fact that the Mohini Bala did not put her L.T.I before us. Not a fact that we have created this will on a paper where the L.T.I. of Mohini Bala was affixed. Not a fact that we, the witnesses did not put our signatures on the will in the presence of Mohini Bala. Not a fact that Bankim Ojha did not write the will in his presence nor he read over the recital before Mohini Bala and obtained her L.T.I. Not a fact that the writing of the will was not written at 11.00 a.m.” 10. P.W.3 the Plaintiff in his evidence pertaining to the alleged L.T.I of Mohini Bala Dasi has stated in his cross-examination as follows:- “Not a fact that the L.T.I put in the will is not the L.T.I of Mohini Bala. Not a fact that I came to know about the will firstly from Bankim Ojha.” 11. Sri Sahoo, learned Senior Counsel, has primarily argued that when it comes to the question of examination of L.T.I the same is required to be done in a scientific manner. Relying on a decision of the Supreme Court in Thiruvengadam Pillai Vs. Navaneethammal And Another reported in (2008) 4 SCC 530 , Sri Sahoo relies on Paras 15 and 18 which state as follows:- “15. Section 45 of the Evidence Act, 1872 related to “opinion of experts”. It provides inter alia that when the Court has to form an opinion as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in questions as to identity of handwriting or finger impressions are relevant facts. Section 73 provides that in order to ascertain whether a finger impression is that of the person by whom it purports to have been made, any finger impression admitted to have been made by that person, may be compared with the one which is to be proved. These provisions have been the subject-matter of several decisions of this Court. 15.1. In State V. Pali Ram this Court held that a court does not exceed its power under Section 73 if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. These provisions have been the subject-matter of several decisions of this Court. 15.1. In State V. Pali Ram this Court held that a court does not exceed its power under Section 73 if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. But this Court cautioned “30…..Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, 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 the 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.” 12. He has also relied upon a decision of Jaspal Singh Vs. State of Punjab reported in AIR 1979 SCC 1708 wherein at Para 8 the Hon’ble Apex Court has held as follows:- “Learned Counsel for the appellants also relied on the evidence of Dr. Mohinder Pratap, P.W.1 who has stated that the deceased had reached the hospital on 4.8.71 at 2 a.m. Although the injured was speaking something his statement could not be recorded. On the other hand, the witness recorded the statement of the mother Tej Kaur who seems to have given a different version and suggested that her son Bhupinder Singh deceased had an injury on his abdomen which was caused by the falling of a bag containing wheat on his stomach. The thumb impression of Tej Kaur on the alleged statement was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaur. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr. The thumb impression of Tej Kaur on the alleged statement was sent to the expert who was of the opinion that this could not be the thumb impression of Tej Kaur. The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. The report of Dr. K.S. Puri clearly demonstrates that the thumb impression the statement Exhibit P-B was not that of Tej Kaur but was of some other woman who appears to have falsely represented to the Doctor that she was the mother of the deceased. This is supported not only by the fact that the thumb impression of Tej Kaur on the statement Ex. P-B was forged but also by the categorical statement of P.W.6 wherein she denied having made any such statement before the Doctor. The doctor although examined as a witness in court was never made to identify Tej Kaur who was also one of the witnesses, nor was any application given by the accused that the Doctor should be called upon to identify Tej Kaur, P.W.6 in order to test the validity of the statement that it was really Tej Kaur who made the statement Exh. P-B before the Doctor. In these circumstances, therefore, the evidence of the Doctor does not appear to be of any assistance to the defence.” 13. Sri Sahoo has also placed Order 26 Rule 10A of the Code of Civil Procedure which enjoins upon the Court to order a Commission for scientific investigation of a disputed signature or, in this case L.T.I. According to the learned Counsel the petitioner cannot be deprived of a right conferred by statute to have the L.T.I examined. Sri Sahoo has further argued that the defendants have alleged at Paragraph 12 of their written statement as follows:- “The said Mohini Bala Dasi died intestate and without her knowledge and/or by misrepresentation upon the said deceased, the alleged plaintiff manipulated and manufactured the said alleged will by putting fabricated and forged thumb impression of the deceased Smt. Mohini Bala Dasi and trying to get probate of the said Will by camouflaging the learned Court.” 14. Sri Sahoo points out that the cross-examination of a witness requires skill. Sri Sahoo points out that the cross-examination of a witness requires skill. He therefore disputes the evidence of the P.Ws (as quoted above in this judgment) to the effect that it was never the intention of the defendants not to question the P.Ws on the authenticity of the L.T.I of Mohini Bala Dasi since such a point was already taken in the written statement of the defendants which was subsequent echoed in their application under Order 26 Rule 10 of the Code of Civil Procedure. He points out that at any stage the L.T.I of the executrix can be examined by the Court. 15. Per contra Sri Chanda points out that the order impugned of the learned Trial Court makes it evident that P.Ws 2 and 3 were never suggested in their cross-examination that the L.T.I of Mohini Bala on the alleged will was forged. On the contrary, it was suggested to P.W.2 that Mohini Bala did not put her L.T.I before them and they have created this will on a paper where the L.T.I of Mohini Bala was affixed. 16. Therefore, according to the learned Trial Court, by putting such suggestion to P.W.2, the defendants have practically admitted the L.T.I of Mohini Bala. It is further recorded in the order impugned that O.Ps No. 1 and 2 did not state anything about the Will and they have also not stated that the Will does not bear the L.T.I of Mohini Bala Dasi as the same is forged. 17. Sri Chanda draws the attention of this Court to the evidence of P.W. 2 and argues that in the light of the specific suggestion that the will was created on a paper where the L.T.I of Mohini Bala was affixed, there was no specific suggestion by the defendants that the L.T.I of Mohini Bala was forged. In such view of the matter, according to Sri Chanda, the learned Trial Court, in the absence of specific evidence of questioning the authenticity of the L.T.I cannot embark on a roving enquiry and exercise powers under Order 26 rule 10A C.P.C. 18. Sri Chanda relies upon an unreported Judgment of this Court in C.O 3472 of 2008 in the matter of Arabinda Kumar Pal & Anr. Vs. Ranjan Kumar Pal & Ors. Sri Chanda relies upon an unreported Judgment of this Court in C.O 3472 of 2008 in the matter of Arabinda Kumar Pal & Anr. Vs. Ranjan Kumar Pal & Ors. wherein an Hon’ble Single Bench was pleased to hold as follows:- “The effect of not cross examining the plaintiff’s witness with regard to such material issue was considered by the Hon’ble Court in the Case of A.E.G. Carapiet Vs. A.Y. Derderian reported in AIR 1961 Calcutta 359 wherein it was held as follows:- “Where the opponent had declined to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice.” 19. The aforesaid principle which was laid down by this Hon’ble Court in the said decision was followed in a subsequent decision of this Hon’ble Court in the case of Krittibas Bhattacharya and others Vs. State of West Bengal & Ors. Reported in 1984 (1) CLJ Page 161 wherein it was held that “if a defendant fails to put essential and material question to the plaintiff’s witness in cross-examination, the defendant is deemed to admit the plaintiff’s case on that point.” 20. Following the principle which was laid down by this Hon’ble Court in the aforesaid decisions, this Court finds no hesitation to hold that by not cross examining the attesting witness on the question of genuineness of the signature of the testator in the impugned will, the said defendants practically admitted the genuineness of the signature of the testator in the said will. If that be so then, in my view, no such reference, as prayed for, by the petitioner is necessary as the said defendants practically have abandoned and/or given up their plea regarding the dispute relating to genuineness of the signature of the testator in the impugned will. Facts admitted need not be proved. As such no elucidation on the question of genuineness of the execution of the will by the testator, by reference to the hand writing expert, is necessary in the facts of the instant case.” 21. Relying on the said decision, Sri Chanda therefore argues that admitted facts need not be re-opened. 22. Heard. Considered the materials on record. 23. As such no elucidation on the question of genuineness of the execution of the will by the testator, by reference to the hand writing expert, is necessary in the facts of the instant case.” 21. Relying on the said decision, Sri Chanda therefore argues that admitted facts need not be re-opened. 22. Heard. Considered the materials on record. 23. This Court is of the opinion that the decision rendered in C.O. 3472 of 2008 squarely applies to the facts of this case. The learned Trial Court had correctly held that both P.W.2 and P.W.3 were not cross-examined with the specific suggestion that the L.T.I of Mohini Bala was forged. The learned Trial Court also correctly held that the deposition O.P.W. NOs 1 and 2 did not contain any reference to the allegation that the L.T.I of Mohini Bala was forged. 24. This Court is in respectful concurrence with the ratio propounded in the unreported decision of Arobindo Kr. Pal and Ors. Vs. Ranjan Kr. Pal and Ors. (C.O. No. 3472 of 2008) that the onus of cross-examining the witness on such a material issue ought to have been availed of by the petitioners. The failure of the petitioner to avail of such opportunity by putting a specific query on the authenticity of the L.T.I of Mohini Bala must lead to the inference that the petitioner has practically abandoned such plea in spite of making averments in the written statement. 25. This Court cannot also be unmindful of the evidence of P.Ws 1, 2 and 3 which are clear and cogent on the circumstances leading to the execution of the will of Lt. Mohini Bala Dasi and the same are worthy of credence. 26. Although there can be no dispute with the legal proposition advanced by Sri Sahoo and based on judicial authority that the science of identifying L.T.I is an exact science, the same cannot be a matter of routine and sufficient circumstances must exist to persuade a Court to allow such investigation under Order 26 rule 10A of the Code of Civil Procedure. 27. In the facts of the present case by failing to cross examine the P.Ws on a relevant and material issue, the learned Trial Court was correctly inclined not to allow the petition filed by the present petitioner-defendant under Order 26 Rule 10 C.P.C. 28. 27. In the facts of the present case by failing to cross examine the P.Ws on a relevant and material issue, the learned Trial Court was correctly inclined not to allow the petition filed by the present petitioner-defendant under Order 26 Rule 10 C.P.C. 28. Accordingly, the order impugned No. 30 dated 9th September 2004 passed by the learned 13th Additional District Court, Alipore in original suit No. 5 of 2001 warrants no interference. 29. C.O. 250 of 2005 is accordingly dismissed. There will be however, no order as to costs. Petition dismissed.