Shijo Antony v. C.C. Joy and others

``` 2024:KER:59421 ``` **==> picture [43 x 42] intentionally omitted <==** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 ``` ## **`OP(C) NO. 2252 OF 2018`** ``` AGAINST THE ORDER DATED 09.08.2018 IN I.A. NO.491/2018 IN O.S. NO.126 ``` ``` OF 2011 OF SUB COURT, HOSDRUG ``` ## **`PETITIONER/3RD DEFENDANT:`** ``` SHIJO ANTONY AGED 39 YEARS PATHIKKAL HOUSE, ELIKKULAM P.O., KANHIRA PPALLI, KOTTAYAM DISTRICT, PIN- 686577 ``` ``` BY ADV JOSEPH T.JOHN ``` ## **`RESPONDENTS/PLAINTIFF & DEFENDANTS 1 AND 2:`** - **`1 C.C.JOY AGED 56 YEARS RESIDING AT CHERADI HOUSE, KADUPPASSERI VILLAGE, MUKUNDAPURAM TALUK, IRINJALAKUDA, TRISSUR DISTRICT, PIN - 680 672`** - **`2 PATHICKAL ANTONY AGED 80 YEARS S/O.JOSEPH, RESIDING AT PATHICKAL HOUSE, ELIKKULAM (P.O.), KANHIRAPALLI, KOTTAYAM DISTRICT, PIN - 686 577. *(DIED) LRS IMPLEADED`** - **`3 PATHICKAL MARY AGED 76 YEARS W/O.PATHICKAL MARY, RESIDING AT PATHICKAL HOUSE, ELIKKULAM (P.O.), KANHIRPALLI, KOTTAYAM DISTRICT, PIN - 686 577.`** - **`ADDL R4 MARIYAMMA JOSE AGED 52 YEARS D/O.PATHICKAL ANTONY, RESIDING AT KADAPLAKKAL HOUSE, ELIKULAM (PO), KANJIRAPPALLY, KOTTAYAM DISTRICT, PIN - 686 577.`** - **`ADDL R5 DALIA MATHEW AGED 50 YEARS D/O.PATHICKAL ANTONY, RESIDING AT KOZHIKOTHIKAL HOUSE, MALLIKASSERY (PO), VILAKKUMADOM, KOTTAYAM DISTRICT, PIN - 686 577.`** ``` (ADDITIONAL RESPONDENTS NOS. 4 AND 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT NO.2 IN THIS OP(C) AS PER ORDER DATED 27.06.2019 IN IA 1/2019) ``` ``` 2024:KER:59421 ``` ``` 2 ``` **==> picture [43 x 43] intentionally omitted <==** ``` O.P (C) No. 2252 of 2018 ``` ``` BY ADVS. RIJI RAJENDRAN SRI.P.CHANDRASEKHAR SRI.K.ARJUN VENUGOPAL SMT.V.A.HARITHA SRI.SIDHARTH B PRASAD SRI.D.SREEKANTH KUM.GAYATHRI MURALEEDHARAN MITHA SUDHINDRAN ``` ``` THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 3 ``` **==> picture [43 x 43] intentionally omitted <==** ## **“C.R”** ## **JUDGMENT** ## **Dated this the 29th day of July, 2024** This Original Petition, has been filed under Article 227 of the Constitution of India and the prayer herein is to set aside Ext.P7 order and allow Ext.P6 interlocutory application. 2. Heard the learned counsel for the petitioner and the learned counsel appearing for the respondents. Perused the impugned order and relevant materials available. 3. Short facts: A suit for specific performance was filed by the 1[st] respondent herein as plaintiff, viz. O.S. No. 126/2011 on the files of the Sub Court, Hosdurg. The petitioner herein is the 3[rd] defendant and respondents 2 and 3 herein are defendants 1 and 2 in the above suit. The petitioner herein/ 3[rd] defendant along with other defendants disputed the execution of the sale agreement. In order to ascertain its genuineness, the disputed sale agreement was forwarded to Forensic Science Laboratory, Kannur. ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 4 ``` **==> picture [43 x 43] intentionally omitted <==** Accordingly, the Scientific OfÏcer (Documents), Regional Forensic Science Laboratory, Kannur filed Ext.P5 report dated 17.03.2018 in support of the 1[st] respondent/plaintiff. 4. Now the petitioner wants to set aside the report and for which Ext.P6 petition was filed before the trial court. The trial court as per Ext.P7 order dismissed the said petition. 5. It is argued by the learned counsel for the petitioner that, Ext.P5 is liable to be set aside for the reasons stated in the afÏdavit in support of Ext.P6 petition. In paragraph No. 3 of Ext.P6, it has been averred as under: 3. I say the report of the scientific ofÏcer, Regional Forensic Science Laboratory dated 17/03/2018 is not correct. I say the observation of the scientific ofÏcer (Documents) Regional Forensic Science Laboratory, Kannur that the standard signatures stamped and marked as A1 to A8 and S1 to S 44 also wrote the red enclosed questioned signatures similarly stamped and marked as Q1 and Q9 is incorrect and misleading. I say the signatures marked as Q1 to Q9 is not mine and I have not put the aforesaid ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 5 ``` **==> picture [43 x 43] intentionally omitted <==** signatures. I say the method adopted by the scientific ofÏcer is not detailed in the report and the scientific ofÏcer ought to have supplied the method adopted for conducting the test for comparison. I say there is a specific method for conducting the test for comparison of the disputed signature and the admitted signatures and the scientific ofÏcer has failed to adopt the scientific method for comparing the signatures. I say, the scientific ofÏcer (Documents) Regional forensic Science Laboratory had compared my admitted signatures and disputed signature in a lethargic and mechanical way. 6. Whereas, it is submitted by the learned counsel for the 1[st] respondent that, the petitioner and other defendants disputed the agreement for sale executed on 26.02.2010 in between the plaintiff and defendants, in respect of plaint A and B schedule properties, when suit filed seeking specific performance of the said agreement. As a sequel thereof, the petitioner herein/3[rd] defendant filed I.A. No.33/2017 for getting expert opinion regarding genuineness of the signatures therein. Accordingly, Ext.P5 report was obtained ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 6 ``` **==> picture [43 x 43] intentionally omitted <==** and the same runs contra to the contentions of the defendants. Now, the petitioner/3[rd] defendant wants to set aside Ext.P5 expert opinion. It is submitted by the learned counsel for the 1[st] respondent that an opinion evidence is a corroborative piece of evidence and the same cannot be set aside by the court for any reasons, though the expert can be examined in case of dispute regarding the genuineness of the findings, as per law. 7. Now, the question arises for consideration is whether the prayer to set aside an opinion evidence is legally sustainable? 8. As per Section 45 of the Evidence Act, 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. ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 7 ``` **==> picture [43 x 43] intentionally omitted <==** 9. In the decision reported in **Dayal Singh v. State of Uttaranchal** [AIR 2012 SC 3046 : (2012) 8 SCC 263], it has been held by the Supreme Court that Courts look upon expert evidence with greater sense of acceptability, but are not absolutely guided by such evidence, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. The expert witness is expected to put before the Court all materials inclusive of the date which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by examining the terms of science, so that the Court, although not an expert, may form its own judgment on those materials after giving due regard to the expert’s opinion. 10. Thus, it is a settled principle of law that the expert evidence is only an opinion. It could just corroborate the substantive evidence. An expert’s evidence being only an opinion, it is up to the parties to let in evidence challenging its correctness and it is up to the court to form its own ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 8 ``` **==> picture [43 x 43] intentionally omitted <==** conclusions on the evidence. When direct evidence is forthcoming on the matters spoken to by an expert, the court is not precluded from acting on such direct evidence in preference to the report of an expert. 11. It is well settled further that, the report of an expert is not the conclusive proof. Evidence of expert, after all, is opinion evidence. The court has to evaluate the same, like any other evidence. It is for the court to judge whether the opinion has been correctly reached on the data available and for the reasons stated. The opinion of an expert is not a substantive piece of evidence in the case, and it is not conclusive. It is the duty of the courts to scrutinise the expert opinion tendered in evidence very closely, and to find out the basis upon which it was made. After all, it is only an opinion evidence and cannot be safely relied upon, unless the basis of opinion is found to be firm. Where the court permits the evidence of one expert to be brought on record, on a technical matter, it does not abdicate its function to judge for itself whether the opinion of an expert is correct or not on a ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 9 ``` **==> picture [43 x 43] intentionally omitted <==** matter in issue. 12. Thus, going by the mandate of Section 45 of the Evidence Act, what is intended in getting an opinion regarding a disputed fact from an expert is to corroborate the fact in issue when the substantive evidence is available in relation to fact in issue. No doubt, acceptability of opinion evidence is subject to check and vigil. In case of any dispute regarding the execution of a document or signatures therein, the procedure of law is to prove the same by adducing substantive evidence by examining the parties and witnesses directly involved in the execution of the document. True that, opinion evidence is a piece of corroborative evidence, which the Courts can either act upon or reject. Instead, the Courts would not go for the extreme step to set aside an opinion authored by an expert for his own reasons, for any reason. Therefore, unlike commission report and mahazar, an opinion expressed by an expert cannot be set aside by the court in an ordinary manner and the court shall leave the opinion subject to its proof by examining its author ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 10 ``` **==> picture [43 x 43] intentionally omitted <==** and by other means. No doubt, the court can opt for a second opinion, if the facts of the particular case absolutely warrant such a course of action without interfering or setting aside the opinion evidence. 13. Therefore, it is held that the prayer seeking to set aside the opinion evidence is not liable to be allowed when the report espouses reasoning for the finding so that the expert could be questioned during examination to prove its genuineness and authenticity. 14. In view of the above, the dismissal of Ext.P6 petition by the trial court as per Ext.P7 order appears to be justified, since the grievance of the petitioner, in fact, addressed by the trial court by forwarding the disputed sale agreement to a Government Forensic Science Laboratory and the Scientific OfÏcer (Documents), Regional Forensic Science Laboratory, Kannur filed report in support of the 1[st] respondent/plaintiff. Therefore, the relief sought for in this petition, to set aside Ext.P5 report is totally unwarranted, since the finding in the report is merely an opinion evidence. ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 11 ``` **==> picture [43 x 43] intentionally omitted <==** 15. Accordingly, this petition is found to be meritless and the same stands dismissed, with liberty to the petitioner to examine the expert, with regard to Ext.P5 report. Registry is directed to forward a copy of this judgment to the trial court, within three days, for information and further steps. **Sd/-** **A. BADHARUDEEN JUDGE** SK ``` 2024:KER:59421 ``` ``` O.P (C) No. 2252 of 2018 ``` ``` 12 ``` **==> picture [43 x 43] intentionally omitted <==** ## **`APPENDIX OF OP(C) 2252/2018`** |**`PETITIONER EXHIBITS :`**|| |---|---| |**`EXHIBIT P1`**|**`TRUE COPY OF THE PLAINT IN O.S.NO.126/2011 OF`**| ||**`THE SUB COURT, HOSDURG.`**| |**`EXHIBIT P1`**|**`TRUE COPY OF THE AGREEMENT DATED 26/2/2010.`**| |**`EXHIBIT P2`**|**`TRUE COPY OF THE WRITTEN STATEMENT FILED BY`**| ||**`THE PETITIONER IN O.S.NO.126/2011 OF THE SUB`**| ||**`COURT, HOSDURG.`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE INTERLOCUTORY APPLICATION`**| ||**`NUMBERED AS I.A.NO.280/2013.`**| |**`EXHIBIT P3`**|**`TRUE COPY OF THE ANSWERS FURNISHED BY THE`**| ||**`PLAINTIFF TO EXHIBIT - P3 APPLICATION.`**| |**`EXHIBIT P4`**|**`TRUE COPY OF THE DOCUMENTS PRODUCED BY THE`**| ||**`MANAGER OF THE SOUTH INDIA BANK, PACHALAM`**| ||**`BRANCH, IN O.S.NO.126/2011 BEFORE THE SUB`**| ||**`COURT, HOSDURG.`**| |**`EXHIBIT P5`**|**`TRUE COPY OF THE REPORT DATED 17/3/2018 OF`**| ||**`THE FINGER PRINT EXPERT.`**| |**`EXHIBIT P6`**|**`TRUE COPY OF THE INTERLOCUTORY APPLICATION`**| ||**`NUMBERED AS I.A.NO.491/2018.`**| |**`EXHIBIT P6`**|**`TRUE COPY OF THE COUNTER FILED BY THE`**| ||**`PLAINTIFF TO EXHIBIT -P6 APPLICATION.`**| |**`EXHIBIT P7`**|**`TRUE COPY OF THE ORDER DATED 9/8/2018 IN`**| ||**`I.A.NO.491/2018.`**|