Judgment & Order (Oral):

1. Heard Mr. A.I. Uddin, learned counsel for the petitioner. Also heard Mr. B.K. Bhagawati, learned counsel for the respondent.

2. The petitioner as plaintiff had instituted a title suit, being TS No. 131/2011, where the present respondent is the sole defendant. The plaintiff was seeking a declaration with regard to a sale deed being Sale Deed No. 1790/2008, contending that the same is forged, fraudulent, and inoperative, and liable to be cancelled. He was seeking right, title, interest also, along with declaration.

3. The respondent as defendant, filed written statement in the suit. Issues were framed and evidence adduced. The plaintiff adduced evidence from his side, and the defendant also adduced evidence and the case is presently stated to be at the stage of arguments pending in the Court of the learned Civil Judge, (Junior Division) No. 1, Nagaon.

4. At this stage, the petitioner/plaintiff filed an application seeking to invoke the provisions of Order 26, Rule 10A of the Civil Procedure Code, 1908 (hereinafter CPC), seeking a direction to send the disputed sale deed for a scientific investigation.

5. The respondent/defendant filed an objection to the said petition of the plaintiff/petitioner seeking scientific investigation under Order 26, Rule 10A CPC. After considering the matter, the learned trial Court vide order dated 27.10.2021 was pleased to dismiss the prayer of the plaintiff/ petition for a commission for scientific investigation.

6. Mr. A.I. Uddin, learned counsel for the petitioner, submits that the main issue in the suit is the validity of the sale deed, which the plaintiff/petitioner is challenging, and therefore, the scientific investigation is necessary to arrive at the correct fact regarding such validity of the sale deed.

7. With regard to the aspect of delay mentioned by the learned trial Court in the impugned order, the learned counsel submits that the litigation has been initiated by the petitioner/plaintiff, and he would not benefit from any such delay.

8. In support of his contention, the learned counsel for the petitioner has relied upon the decision of the Hon’ble Supreme Court in Ram Avatar Soni versus Mahanta Laxmidhar Das and Others (2019) 11 SCC 415 and drawn attention of this Court to Para-7 thereof:-

                   “7. As pointed out earlier, the appellant has filed the suit CS No.2/34 of 2008/2003 challenging the genuineness of alleged Will executed by Natabar Das in favour of the first respondent and seeking revocation of the probate of the will. As submitted by the learned senior counsel appearing for the appellant, in the said suit, issue No.3 has been framed that “Has the defendant No.1 by practising fraud managed to get the Will probated, which was a fabricated and manufacture done” Hence, the genuineness of the Will in question needs to be decided that is whether the signature in the Will dated 12.03.1989 allegedly executed by Natabar Das could be ascertained only by sending the document to hand-writing expert. As discussed above, earlier in WP(C) No.14997 of 2013, while setting aside the order of the District Judge dated 18.06.2013, the High Court has observed that the application filed under Order XXVI Rule 10A CPC can be considered at a later stage of the proceedings that is after closure of the evidence from both sides. After their witnesses were examined, the plaintiff/appellant again reiterated the prayer for sending the Will in question to hand-writing expert. If the scientific investigation of the document in question facilitates the ascertaining of truth, in the interest of justice, naturally it has to be ordered. Having regard to the issue raised in the suit, the District Judge was right in allowing the application to send the Will in question dated 12.03.1989 to hand-writing expert.”

9. Relying on this decision, the learned counsel reiterates and submits that such scientific investigation can be resorted to find the truth, and that even at this stage, such powers can be exercised.

10. On the other hand, Mr. Bhagawati, the learned counsel for the respondents contends that it is well settled that the powers of issuing commission cannot be used to result in gathering evidence for any party. He also contends that the suit is already delayed and commission would further delay the suit.

11. It is also submitted that the petitioner/plaintiff has not mentioned sufficient reasons in his petition seeking such commission.

12. I have perused the relevant materials and the submissions of the learned counsels and also the case law submitted at the Bar.

13. Before proceeding further, the statutory provision may be reproduced herein below:-

                   “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.

14. Upon perusing the impugned order, I find that the learned trial Court has noticed the stage of the case, wherein, evidence has already been adduced from both the sides. It has also noted that during the trial. So far, the petitioner has not filed any application to send the document for opinion of handwriting expert. It is observed that the petition of the plaintiff at this belated stage was to drag the proceedings.

15. From para-7 of Ram Avatar Soni (supra), it is revealed that the Hon’ble Apex Court upheld the order of the learned Trial Court in that case to send the WILL in question for scientific/forensic examination. It was held that - if the scientific investigation of document facilitates ascertaining of truth in the interest of justice, naturally it has to be ordered. It was also indicated in the said decision by the Hon’ble Apex Court that powers under Order 26, Rule 10A CPC can be invoked, even after closure of evidence from both the sides.

16. Undoubtedly, the crux of the matter, before the learned trial Court is the validity of the sale deed. The whole suit is filed with the main prayer of declaring the sale deed as void on the ground of it not being genuine. The main contention of the plaintiff/petitioner in the trial is that the said sale deed is not a genuine one.

17. On the other hand, the defendant/respondent contends that the said document is a genuine one and therefore, validly conveying the property. The learned trial Court has before it, the evidence of the parties along with their exhibited documents. As already mentioned above, the most important question to be decided by the learned trial Court in the trial appears to be the validity of the said sale deed.

18. The interest of justice would demand that the said question is decided correctly by finding the actual fact or truth about the nature of the sale deed. I also take note of the fact that despite the delay, the petition for commission has been filed by the plaintiff, who is the dominus litis. The matter perhaps might have been somewhat different, if the petition for forensic examination was preferred by the defendant.

19. In my considered opinion, and keeping-in-mind the latest scientific developments in the field of forensics, and also the principles laid down in Ram Avatar Soni (supra) — I am of the considered opinion that a scientific opinion through a commission, as prayed for by the plaintiff/petitioner, would be of assistance to the learned trial Court in deciding the main issue correctly. This is of course subject to the condition that exercise be done expeditiously, so that, the title suit which is already pending for several years comes to a conclusion in the near future.

20. Accordingly, in such view of the matter, the impugned order dated 27.10.2021 passed by the learned Civil Judge, (Junior Division) No.1 Nagaon, in T.S. 131/2011, is hereby set aside.

21. Invoking the powers of Order 26, Rule 10A CPC, a commission shall be issued to the Director of FSL to depute a handwriting expert for examination of the sale deed, being sale deed No.1790 of 2008, the costs of which shall be borne by the plaintiff/petitioner.

22. It is directed that despite the general workload in the Forensic Laboratory, considering the long pendency of the title suit, the scientific examination shall be done expeditiously.

23. After the results of the scientific examination are available, the parties will be at liberty to examine necessary witnesses, including cross-examination by the defendant/respondent.

24. The instant civil revision stands allowed and disposed of on the aforesaid terms.