JUDGMENT : Soumen Sen, J. 1. A split verdict on the interpretation of Order 26 Rule 10A read with Section 151 of the Code of Civil Procedure has resulted in the present reference. 2. The appeal arose out of a decree passed in Money Suit No. 5 of 1998 instituted by the plaintiff-appellant against the respondents. The learned Second Civil Judge, Senior Division, Barasat dismissed the suit on the ground that the plaintiff has failed to prove his case. 3. The plaintiff-appellant is the sole proprietor of the M/s. Ranjeeta Enterprises. The plaintiff has produced the Bengali feature film ‘PREM SANGEE’. According to the plaintiff-appellant the plaintiff incurred costs of Rs.28,02,545/- in production of the said colour feature film. The plaintiff entrusted the work of developing the first positive print for release of the feature film to the defendant no. 1 West Bengal Film Development Corporation. On or about 2nd December 1997 after obtaining the Censor Certificate, the plaintiff made arrangements for exhibiting the film and, in due course, the plaintiff entrusted the defendant No.1 and placed orders on the said defendant for developing four more positive prints of the film for releasing in Kolkata and in the districts. The plaintiff contends that the defendant No.1 is having a laboratory by the name of Rupayan Laboratory and the said laboratory was entrusted with the aforesaid task of developing an additional four more positive prints of the said feature film for release in Kolkata and in the districts of West Bengal. In order to develop the said prints the plaintiff made arrangement for supply of raw stock of Kodak 35 MM films directly to the laboratory of the defendant Nos.1 to 4. It was allegedly reported to the plaintiff on 12th December, 1997 that the 2nd, 3rd, th and 5th prints were found to be of poor quality, the same being foggy, hazy and the insufficient lighting display. On the basis of such alleged reporting, the plaintiff wrote a letter dated 15th December, 1997 requesting the defendants to take steps for removal of such defects. According to the plaintiff, concerned defendants did not take any steps to remove the defects. The prints being defective, there were few viewers and the cinema hall owners did not exhibit the film for long. According to the plaintiff, concerned defendants did not take any steps to remove the defects. The prints being defective, there were few viewers and the cinema hall owners did not exhibit the film for long. The plaintiff further contended that the Print No.1, being free of defects, was exhibited successfully at Shyamsree Cenema in the then district of Midnapore. The plaintiff contends that the film suffers the set back and flopped because of the defective prints and the plaintiff-appellant had incurred huge losses. The plaintiff alleged that due to the inaction on the part of the defendants in taking timely and proper steps to remove the defects in the Print Nos.2, 3, 4 and 5, the plaintiff has suffered a total loss of Rs.51,46,869 and, accordingly, has prayed for recovery of the said amount by way of damages being cost of production, cost of raw film, printing charges and publicity expenses incurred by him. 4. On the aforesaid premise the plaintiff filed a suit being Money Suit No. 5 of 1998 in the Court of Civil Judge, Senior Division, Barasat, North 24 Parganas claiming damages on the allegation that the film did not attract viewers on account of defective printing. Summons were served on the defendants. The defendant nos. 1 to 4 however did not contest the suit and the suit was heard ex parte. 5. On an application filed for addition of a party Vijaya Bank was added as the defendant No. 5. From the written statement of Vijaya Bank it transpires that the said bank had granted plaintiff a term loan of Rs.25 lakhs for the production of the said film. At the trial, the plaintiff adduced evidence-in-chief reiterating the contents of his complaint. The plaintiff has also filed a petition under Order 11 Rule 12(2) of the Code of Civil Procedure for discovery of documents which, inter alia, covered all the facts pertaining to the production and exhibition of the said feature film. At the trial, the plaintiff adduced evidence-in-chief reiterating the contents of his complaint. The plaintiff has also filed a petition under Order 11 Rule 12(2) of the Code of Civil Procedure for discovery of documents which, inter alia, covered all the facts pertaining to the production and exhibition of the said feature film. The documents, inter alia, included the copies of the transaction entered into between the plaintiff and the defendant Nos.1 to 4 for developing the four positive prints, the loan application for credit facilities issued by Vijaya Bank in favour of Ranjeeta Enterprises, audit account of Ranjeeta Enterprise for the year 31st March, 1996 and notices issued on behalf of the appellant to the defendants dated 12th December, 1997, 15th December, 1997 and 17th December, 1997 and reports from cinema halls on the condition of the film dated 11th December, 1997 and 12th December, 1997. 6. In order to prove its claim that the 2nd, 3rd, 4th and 5th prints were defective or in damaged condition, the plaintiff filed an application under Order 26 Rule 10(i)(A) read with Section 151 of the Code of Civil Procedure, praying, inter alia, for an enquiry by an expert on the quality of the said prints. In the application, the petitioner has prayed that the positive prints may be sent to Prasad Laboratories, Bhubaneshwar or any other laboratory for scientific comparison, enquiry and report. On 7th September, 1998, the plaintiff filed an application under Order 26 Rule 10(i)(A) read with Section 151 of the Code of Civil Procedure, praying, inter alia, for an order to send the five positive prints in respect of the Bengali feature film ‘PREM SANGEE’ to the test house of the Prasad Laboratories or any other laboratory of the film division requesting them for scientific enquiry/investigation and to submit a report on the point mentioned in the petition. 7. The trial Court by an order dated 16th October, 2001 passed an order recording that for the purpose of proper adjudication, the five prints are to be sent to the ADLAB, Bombay for scientific enquiry. The plaintiff was directed to communicate this order to ADLAB so as to ascertain the probable cost of the work as per the prayer of the plaintiff and the matter was fixed on 13th December, 2001 for further order. The plaintiff was directed to communicate this order to ADLAB so as to ascertain the probable cost of the work as per the prayer of the plaintiff and the matter was fixed on 13th December, 2001 for further order. The plaintiff appears to have failed and neglected to comply with the order dated 16th October, 2001 as would appear from the subsequent order No.41 dated 7th March, 2002. By the order dated March 7, 2002, a further opportunity was given to the plaintiff to write a letter to ADLAB, Bombay without further delay asking for the probable cost for scientific enquiry to be done by them as per the prayer of the plaintiff. The matter was fixed on 5th July, 2002. The fact remains that the plaintiff, thereafter, did not take any steps to obtain a report in terms of the earlier orders. In the mean time, the trial of the suit commenced. The plaintiff allowed the trial to commence without seeking any further direction on scientific investigation. The learned trial Court on consideration of oral and documentary evidence dismissed the suit on the ground that in spite of opportunities being given to the plaintiff to prove that the plaintiff has incurred losses or such losses, if any, were suffered due to any lapse on the part of the defendants has failed to prove its claim. 8. The present reference arises in view of two different views taken by the Hon’ble Judges of the Division Bench with regard to the orders passed by the learned court below on 16th October, 2001 and 7th March, 2002 in connection with the application for scientific investigation. 9. While Justice Talukdar was of the opinion that it was incumbent upon the learned court below to ensure that its orders dated 16th October, 2001 and 7th March, 2002 are complied with and reports of the scientific enquiry are produced for effective adjudication of the claim of the suit, Justice Indira Banerjee was of the opinion that it was not the duty of the Court to ensure that such scientific investigation is produced as it is a duty of the plaintiff-appellant to take effective steps and ensure due compliance of the said orders. 10. It would be useful at this stage to refer to the observations of the respective Hon’ble Judges on this issue. 11. 10. It would be useful at this stage to refer to the observations of the respective Hon’ble Judges on this issue. 11. Justice Talukdar has proceeded on the basis that the learned trial Court “ought to have exercised jurisdiction vested in it by law to arrive at a just conclusion on facts by carrying its orders of scientific enquiry to a logical conclusion”. The Trial Court erred by not taking its directions for a scientific enquiry to a logical conclusion. His Lordship was of the opinion that once the Trial Court in the application filed by the applicant in the Order 26 Rule 10(i)(A) read with Section 151 of the Code of Civil Procedure found that the scientific enquiry was necessary for the purpose of the proper adjudication, it was incumbent upon the learned Trial Court to call for a report of the scientific investigation from any other laboratory, when it discovered that ADLAB Bombay, Mumbai did not respondent to its direction. The learned Trial Court could have called for an explanation from ADLAB Bombay, Mumbai for the reason of its failure to respond to the directions passed by the Trial Judge. This aspect of the matter of scientific enquiry of the quality of the films was not even referred to in the impugned judgment which calls for the matter to be sent back to the Trial Court on remand on the limited issue for calling on the scientific enquiry as ordered by it from an appropriate competent body in exercise of jurisdiction vested in it by law. His Lordship was also of the view that the order impugned does not reflect the objective efforts made by the learned Trial Court in its earlier orders to arrive at a just finding on facts but the said impugned order has embarked into with the realm of surmises. The observation made by Justice Talukdar in this regard is indicated below:- “Order 26 Rule 10(i)(A) empowers the Court to Order commissions for scientific investigation etc. The said rule reads as follows: -“Commission for scientific investigation. The observation made by Justice Talukdar in this regard is indicated below:- “Order 26 Rule 10(i)(A) empowers the Court to Order commissions for scientific investigation etc. The said rule reads as follows: -“Commission for scientific investigation. (ii) 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 interest of justice so to do, issue a commission to such person as it thinks fit, directing him to enquire into such question and report there on to the Court.” From a conjoint reading of Order 26 Rule 10(i)(A) & Order 26 Rule 12(2) of the Code of Civil Procedure this Court finds that the Learned Trial Court erred by not taking its directions for a scientific enquiry to a logical conclusion. This Court is of the opinion that having once held that the results of such scientific investigation could be necessary for proper adjudication, the Learned Trial Court failed to exercise jurisdiction vested in it by law by calling for a report of the scientific investigation from any other laboratory when it discovered that ADLAB, Bombay (now Mumbai) had not responded to its directions. The Learned Trial Court could have even called for an explanation from ADLAB, Bombay (Mumbai) on the reason for its lack of response to the directions passed. This Court is also of the opinion that such scientific investigation was correctly called for by the Learned Trial Court for determining the quality of the prints and thereby arrive at a just conclusion on the claim of the appellant-plaintiff.” 12. Justice Indira Banerjee, however, held that the plaintiff-appellant did not carry out the orders even after time was extended on 7th March, 2002. 13. Hon’ble Justice Banerjee, however, was of the view that since the plaintiff did not take any steps for implementation of the said orders the court is not under duty to seek enforcement of the said order. Several years after the orders were passed the plaintiff adduced evidence by way of affidavit of evidence in examination-in-chief and was also examined in Court. It was observed that at no point of time that the plaintiff–appellant pressed for the examination of the films. Several years after the orders were passed the plaintiff adduced evidence by way of affidavit of evidence in examination-in-chief and was also examined in Court. It was observed that at no point of time that the plaintiff–appellant pressed for the examination of the films. There was also no materials at all on the basis of which a finding can be arrived at that it was technically possible to determine the liability for the defective print if any by examination. The Hon’ble Judge has observed that no attempt was made to prove that film flopped by reason of defective print. The reports of the cinema halls were not proved. No witnesses from the concerned cinema halls were examined. No viewer was examined. The plaintiff-appellant did not state facts and figures relating to the sale of tickets. There is no evidence to show that the halls were full on the first day or too but later the sale of tickets gradually dropped due to defective prints. The plaintiff also did not disclose sale figures on which the first print which was admittedly free from defect, was shown. There is not whisper in the evidence on the length of time for which the film was exhibited in the hall in which the first print was exhibited. 14. The relevant observations of Justice Banerjee in this regard are:- “Order 26 Rule 10A is a discretionary enabling provision. Where any question arising in a suit involves any scientific investigation, which cannot, in the opinion of the Court, be conducted before the Court conveniently, the Court may, if it thinks necessary or expedient in the interests of justice, so to do, issue a commission to such person as it thinks fit, directing him to enquire into such question and report thereon to the Court. Before calling for a report under Section 10A, this Court has to be satisfied that the person and/or the body from whom the report is sought has the necessary technical expertise to conduct the scientific investigation required. In this case, on the prayer of the plaintiff appellant the Trial Court issued directions for obtaining the costs of scientific investigation from ADLAB. The plaintiff appellant did not carry out the order. In this case, on the prayer of the plaintiff appellant the Trial Court issued directions for obtaining the costs of scientific investigation from ADLAB. The plaintiff appellant did not carry out the order. Almost six months later, when the Trial Court found that its order of 16th October, 2001 had not been complied with, it again issued directions for communication of the orders of the Court to ADLAB along with a copy of the petition of the plaintiff appellant. This does not appear to have been done. The order for obtaining an estimate of the costs of investigation from ADLAB having been passed on the application of the plaintiff appellant, who did nothing to implement the said order, the Trial Court rightly proceeded with the adjudication of the suit on merits. It was not for the Trial Court to communicate its order to ADLAB or to enforce its orders in the absence of any prayer for enforcing compliance of the said order. There can be no doubt that the Court has a duty to pass just orders and ensure that justice is done. However, it is no part of the Court’s duty to dig out evidence on behalf of any party to a suit. In the absence of any materials, on the basis of which we can be satisfied that ADLAB or any other laboratory has the necessary expertise to make the required investigation, remanding the suit and directing re-trial, will be an exercise in futility. (emphasis added) 15. Hon’ble Justice Banerjee has conquered with the view expressed by the learned Trial Judge that the plaintiff has miserably failed to discharge its onus to prove its claim in the Court below. 16. Mr. Ranjan Kalia, the learned Counsel appearing on behalf of the plaintiff argued that the learned trial Court has failed to take into consideration two several orders dated 16th October, 2001 and 7th March, 2001 by which ADLAB was directed to file a report. The trial Court failed to exercise its jurisdiction in not ensuring that the said laboratory should file a report which would be a piece of evidence in the suit to enable the plaintiff to prove its claim that the plaintiff has suffered loss and damage due to poor quality of the prints. The trial Court failed to exercise its jurisdiction in not ensuring that the said laboratory should file a report which would be a piece of evidence in the suit to enable the plaintiff to prove its claim that the plaintiff has suffered loss and damage due to poor quality of the prints. It is submitted that if the trial Court was of the view that ADLAB was reluctant to file a report then the trial Court ought to have appointed another laboratory as prayed for by the appellant-plaintiff to arrive at a just conclusion on the quality of the prints. The trial Court has completely ignored the earlier two orders and has merely referred to the lack of expert evidence with regard to the raw stock supplied by the appellant-plaintiff and, therefore, concluded that latches cannot be fastened on the defendants. The learned Counsel has argued that the judgment impugned suffers from non-application of mind and is, therefore, not sustainable. The learned Counsel has supported the view taken by Justice Talukdar and submitted that the order of remand on the limited issue of calling for a expert report from an appropriate competent body as directed by His Lordship be sustained in the interest of justice. 17. Rule 10A is inserted to provide for the issue of commissions for scientific investigation. The said rule provides that 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 is necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to enquire into such question and report thereon to the Court. The rule gives a discretion to the court to direct a scientific investigation only if it thinks necessary or expedient in the interest of justice. The purpose and object of the rule is that if the opinion of the scientific investigation is going to help in extracting the truth. 18. The basic rationale of Rule 10-A is that if scientific investigation helps in extracting truth and in determining the controversy raised in the suit, such investigation could be allowed. (Yash Pal v. Kartar Singh, AIR 2003 P&H 344 ) In fact, exercise of such undertaking would be necessary and expedient in the interest of justice. 19. 18. The basic rationale of Rule 10-A is that if scientific investigation helps in extracting truth and in determining the controversy raised in the suit, such investigation could be allowed. (Yash Pal v. Kartar Singh, AIR 2003 P&H 344 ) In fact, exercise of such undertaking would be necessary and expedient in the interest of justice. 19. Issuance of commission for scientific investigation is in the discretion of the court. The words “the court may issue a commission” clearly show that no party as of right can ask the court to issue commission. 20. Sub-rule (1) of Rule 10 clearly contemplates existence of a question involving scientific investigation which, in the opinion of the court, cannot be conveniently conducted before the court; and it is necessary or expedient in the interest of justice to issue commission. (Natabar v. Balakrishna, AIR 1987 Ori 7 ) 21. Scientific method is an analytical technique by which a hypothesis is formulated and then systematically tested through observation and experimentation. (P.R. Aiyar; Advanced Law Lexicon, (2005), Vol.IV. P.4246.) 22. Scientific examination means ascertainment by observation and experiment critically tested, systematized and brought under a set of principles. (Bhagirati v. Akapati, AIR 2001 Ori 185 ) 23. Order 26 Rule 10A is a discretionary enabling provision. In the instant case, on the basis of the prayer of the plaintiff, the Court permitted the plaintiff to adduce expert evidence. The materials on record would show that the plaintiff was extremely reluctant and negligent in implementing the said order. The plaintiff did not take any steps prior to the commencement of trial of the suit and even during the course of the trial to have the said order implemented by ADLAB or by any other agency having expertise in the matter. The Court is not and should not be a party to the lis. It is elementary principle of law that the onus lies on the plaintiff to prove its claim. 24. Although, in view of failure on the part of the defendants to file written statement, the Court could have invoked the jurisdiction under Order 8 Rule 5 of the Code of Civil Procedure but in deciding the claim of this nature, the Court would be required to have some evidence to assess the damage alleged to have been suffered by the plaintiff by reason of poor quality of the film. The plaintiff would be required to discharge the initial onus of demonstrating and establishing that it was by reason of the poor quality of the film, the film suffered loss and has flopped. It was open to the plaintiff at the trial to adduce other evidence, namely, the owner of the hall, viewers, report of the Cinema Hall, the person who was entrusted with the job of exhibiting the film, the person operating the projector and any other independent evidence to show that it was because of the poor quality of the prints the film suffered. The onus is on the plaintiff to establish that the film flopped as a result of the defect in print Nos.2 to 5 which has consequently resulted in loss and damages. There is no evidence to show that the said film was running house full on the first day or two but later the sale of tickets gradually dropped due to defective prints. As rightly pointed out by Justice Banerjee sales figure of the cinema hall in which the first print, which was admittedly free from defect, was shown was not brought on record and no evidence to that effect was adduced before the trial Court. There is not even a whisper in the evidence of the length of time for which the film was exhibited in the hall in which the first print was exhibited. The plaintiff has virtually abandoned the application filed for scientific investigation. 25. It is not the duty of the Court to fish out and dig out evidence for a party. It is one thing to say that when the Court on his own motion has appointed an expert in which case possibly the observation of Justice Talukdar would be applicable that the Court must ensure that such order is taken to its logical conclusion and it would then be the duty of the Court to ensure production of expert evidence. However, it is different where a party seeks an appointment of an expert in which case the evidence does not form part of the record and has to be brought on record as an evidence and be proved in the manner as required in law. The case is not similar to a situation where a witness is summoned to give witness or produce a document and the said witness has failed to appear or produce such document. The case is not similar to a situation where a witness is summoned to give witness or produce a document and the said witness has failed to appear or produce such document. Even in exercising discretion by the Court under Order 8 Rule 5 sub-rule (1), the Court is required to exercise its discretion carefully and may require any fact to be proved by the plaintiff as any order and/or decree passed without evidence is liable to be set aside. The nature and duty of the Court in such a situation was discussed in Shantilal Gulabchand Mutha Vs. Tata Engineering & Locomotive Company Limited & Anr. reported at (2013) 4 SCC 396 Paragraph 5 which reads:- “5. This Court in Balraj Taneja v. Sunil Madan, 1 dealt with the issue and held that even in such fact situation, the court should not act blindly on the averments made in the plaint merely because the written statement has not been filed by the defendant traversing the facts set out by the plaintiff therein. Where a written statement has not been filed by the defendant, the court should be little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of court’s satisfaction and, therefore, only on being satisfied that there 1. (1999) 8 SCC 396 is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who failed to file the written statement. However, if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. The power of the court to proceed under Order 8 Rule 10 CPC is discretionary.” 26. Under such circumstances, I concur with the view expressed by Justice Indira Banerjee and dismissed the appeal. The power of the court to proceed under Order 8 Rule 10 CPC is discretionary.” 26. Under such circumstances, I concur with the view expressed by Justice Indira Banerjee and dismissed the appeal. Urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.