JISHURAM MARNDI vs RADHESHYAM PARIDA
- Court
- Odisha High Court
CMP/838/2016
ODHC010538502016
2026:OHC:279
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.838 of 2016
[ CNR No. ODHC01-053850-2016 ]
An application under Article 227 of the Constitution of India, 1950.
Jishuram Marndi
…. Petitioner
-versus-
Radheshyam Parida … . Opposite Party
Advocates who appeared in this case through Hybrid Mode:
For Petitioner : Mr. Abhilash Mishra, Advocate
For Opposite Party : Mr. Swarup Kumar Patnaik, Advocate
CORAM:
THE HON’BLE MISS JUSTICE SAVITRI RATHO
J U D G M E N T
---------------------------------------------------------------------------------
Date of hearing : 03.08.2026 :: Date of Judgment : 31.10.2026
---------------------------------------------------------------------------------
Savitri Ratho, J. This CMP has been filed by the Plaintiff challenging the
order dated 20.04.2016 passed by the learned Senior Civil Judge,
Rairangpur in Civil Suit No.113 of 2014 allowing the petition filed
under Order 26 Rule 10-A read with Section 151 of the CPC by the
CMP No.838 of 2016 Page 1 of 22
Defendant for sending the specimen signature of the Plaintiff to the
expert.
BRIEF FACTS OF THE CASE
2. The Petitioner as plaintiff filed the suit before the learned
Senior Civil Judge, Rairangpur for declaring agreement dated
10.11.2012 to be null and void and for other ancillary reliefs, with
specific averments that the Defendant had taken his signatures in
the blank papers which the plaintiff who is a close friend had given
without hesitation and the same has been misutilised by the
Defendant by creating the agreement.
3. Pursuant to receipt of notice, the Defendant appeared in
the suit and filed his written statement denying the plaint
allegations stating that the Plaintiff settled the consideration
amount of the alleged vehicle at Rs.4,40,000/- out of which dues of
the financer was Rs.3,16,000/- and also stated that the Plaintiff had
executed the agreement dated 10.11.2012.
4. After issues had been settled and hearing had commenced,
the Plaintiff examined himself as P.W.1 and was cross-examined
by the Defendant, the latter filed an application under Order 26
CMP No.838 of 2016 Page 2 of 22
Rule 10-A read with Section 151 CPC for appointment of a
commissioner for scientific investigation on the ground that the
Plaintiff was denying his signature on some documents which
requires a proper scientific investigation for proper adjudication.
5. Objection was filed by the Plaintiff stating the Petition
was not maintainable and it should be rejected as it had been filed
at a belated stage to patch up lacuna in the case of the Defendant.
IMPUGNED ORDER
6. The learned trial Court referred to issue
“Has the
Defendant paid Rs.90,000/- on 06.11.2012 and Rs.34,000/- on
17.11.2012 to the plaintiff through money receipts and cleared all
the dues of financier company and purchased the alleged vehicle
from the plaintiff.” and observed that the Plaintiff has not admitted
his signatures on the two money receipts and in the affidavit sworn
by him. Referring to Section 73 of the Indian Evidence Act, held
that it would be just to get the disputed signatures compared with
the admitted signatures of the Plaintiff by an expert. The learned
trial Court also observed that the application had been made shortly
after commencement of the evidence and before conclusion of their
CMP No.838 of 2016 Page 3 of 22
evidence, hence there was no delay. The learned trial Court
directed for “ the comparison of disputed signatures and admitted
signatures six sheets of specimen signatures each containing six
signatures in each sheet i.e. 6 x 6 = 36 signatures of the plaintiff is
required to send the same to the S.P., CID, CB, Odisha for
comparison .
”
SUBMISSIONS
7. I have heard Mr. A. Mishra, learned counsel for the
Petitioner and Mr. S.K. Patnaik, learned counsel for the Opposite
Party.
COUNSEL FOR THE PETITIONER
8. Mr. Mishra, learned counsel for the Petitioner submitted
the power of appointment of commissioner for scientific
investigation cannot be exercised by the learned court below to
assist any party to collect evidence where such evidence can be
produced by the party. The evidence of the plaintiffs was
continuing and closure memo had not been filed by the Opposite
Party. So the appointment of commissioner for scientific
investigation at this juncture will vitiate the trial proceeding for
CMP No.838 of 2016 Page 4 of 22
which the order dated 20.04.2016 being illegal, arbitrary and
contrary to law is liable to be quashed. The object of O-26, R-10-A
C.P.C is for elucidating any matter in dispute by local investigation
at the spot and not to aid any party in adducing evidence. A
Commissioner can be appointed, where the court is satisfied that on
the materials available on record the party is not able to produce
the desired evidence for reasonable circumstances. In the instant
case, as the evidence is yet to be adduced by both the parties,
appointment of the commissioner at this stage will amounts to
collection of evidence and will vitiate the process of trial. As the
plaintiff was denying in his evidence regarding putting of his
signature in the money receipt, but ignoring his deposition the court
below allowed the petition and directed for scientific investigation,
for which the order dated 20.4.2016 is illegal, arbitrary and liable
to be quashed.
C OUNSEL FOR THE OPPOSITE PARTY
9. Mr. Pattnaik, learned counsel has submitted that no
interference is called for in the impugned order as it is a reasoned
one and will decide the dispute between the parties. As the plaintiff
CMP No.838 of 2016 Page 5 of 22
has deliberately denied his signatures on the two money receipts
dated 06.11.2012 and 17.11.2012 and the front of the affidavit, so
examination of his signatures by a handwriting expert would
unravel the truth and would be effective for deciding the lis.
In support of his submission, he has relied on the
following decisions.
(i) Laxmi Bai vs. A. Chandravati : 1994 SCC OnLine
Ori 51 : AIR 1995 Ori 131
Bhagirati Sahu and others vs. Akapati Bhaskar
(ii)
Patra : AIR 2001 Ori 185
(iii) Sibaram Subudhi vs. Padmabati Patra : 2016 (I)
OLR 24.
STATUTORY PROVISION
10. The provision of Order 26, Rule-10-A C.P.C. and Section
73 of the Indian Evidence Act which are relevant for deciding this
CMP are extracted below :-
Code of Civil Procedure
75. Power of Court to issue commissions.-Subject to such
conditions and limitations as may be prescribed, the
Court may issue a commission-
CMP No.838 of 2016 Page 6 of 22
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
(e) [ to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy
and natural decay and which is in the custody of the Court
pending the determination of the suit
(g) to perform any ministerial act.]
”
Order 26 Commissions
10-A. 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.
”
CMP No.838 of 2016 Page 7 of 22
Indian Evidence Act
“ Section 73. Comparison of signature, writing or seal
with others admitted or proved.
In order to ascertain whether a signature, writing or seal
is that of the person by whom it purports to have been
written or made, any signature, writing or seal admitted
or proved to the satisfaction of the Court to have been
written or made by that person may be compared with the
one which is to be proved, although that signature, writing
or seal has not been produced or proved for any other
purpose.
The Court may direct any person present in Court to write
any words or figures for the purpose of enabling the Court
to compare the words or figures so written with any words
or figures alleged to have been written by such person.”
JUDICIAL PRONOUNCMENTS
11.1 In the case of Kessarbai v. Jethabhai Jivan, AIR 1928 PC
277 , it has been held as follows :
"It is unsatisfactory and dangerous to stake a decision, in
a case where there is a direct conflict of testimony
between parties as to general character of a signature, on
the correct determination of the genuineness of the
CMP No.838 of 2016 Page 8 of 22
signature by mere comparison with the admitted
signatures, especially without the aid in evidence of
microscopic enlargments or any expert advice .”
11.2 The Supreme Court in the case of State (Delhi
Administration) vs Palli Ram : AIR 1979 SC 14 , has held as
follows: -
"The matter can be viewed from another angle also.
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 identify 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 a 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."
11.3 In the case of Laxmi Bai (supra) , a Division Bench of this
Court was considering whether the Court should arrogate itself the
CMP No.838 of 2016 Page 9 of 22
role of an expert and compare disputed writings of a person with
other writings to form its opinion and arrive at a conclusion on the
question of identification of handwriting which are admitted or
proved to be his own writings. Relying on the decision in Palli
Ram (supra), it was held as follows:
9. We may state here that under Section 73 of the
“
Evidence Act, a Court is competent to compare the
disputed writings of a person with other writings which
are admitted or proved to be his writings. Such
comparison by the Court is with a view to appreciate
properly the other evidence available on record on the
question of writings. It would, however, be too hazardous
for a Court to use his own eyes and merely on the basis of
personal comparison decide a very vital issue between the
parties centering round the handwriting or signature of a
person ”
11.4 . The Supreme Court in the case of O. Bharathan v. K.
Sudhakaran: AIR 1996 SC 1140, has relied on its decision in the
case of Palli Ram (supra ) and held as follows : -
Notwithstanding the above fact, namely, the learned
“…
Judge while doubting the testimony of the witnesses,
CMP No.838 of 2016 Page 10 of 22
instead of confronting them in a legal way to get the truth,
jumped to his own conclusion. The learned judge in the
course of appreciating the scope of Section 73 of the
Evidence Act and having given a finding that under
Section 73 of the Evidence Act a disputed signature could
be compared only with the admitted signatures, proceeded
to compare the signatures found in the counterfoils to find
out whether both the signatures were to be by the same
person.
On the peculiar facts of this case, the learned Judge
erred in taking upon himself the task of comparing the
disputed signatures on the counterfoils without the aid of
an expert or the evidence of persons conversant with the
disputed signatures. Therefore, the approach made by the
learned judge is not in conformity with the spirit of
Section 73 of the Evidence Act. Though the rulings of this
Court in State vs. Pali Ram (AIR 1979 SC 14) and
Fakhruddin vs. State of Madhya Pradesh (AIR 1967 SC
326) were brought to his notice, the learned judge
proceeded to compare the disputed signatures by himself
and decided the issue.”
11.5 In the case of Bhagirati Sahu (supra), this Court has held
as follows:-
CMP No.838 of 2016 Page 11 of 22
“ 10. The next question that arises for consideration is as
to whether the impugned order rejecting the petitioners'
application for sending the disputed signature appearing
in Ext. 2 for examination and opinion of the handwriting
expert is in accordance with law and can be sustained.
The suit for specific performance of contract which is
under adjudication was at the instance of the plaintiff-opp.
party on the basis and foundation that the defendant No. 1
had executed a deed of agreement to sale the disputed
property (Ext.2) in favour of the plaintiff-opp. party. The
specific plea of the defendants-petitioners was that the
document (Ext. 2) was a forged and fabricated one
wherein the signature of defendant No. 1 has also been
forged and as such, the said document should be sent for
the opinion of the handwriting expert. An application
under Order 26 Rule 10 (A) C.P.C. was filed for sending
the same for examination by the handwriting expert. A
learned single Judge of this Court as already discussed in
Durga Prasad Agarwalla's case (1996 (82) Cut LT 737 )
(supra) while dissenting from the decision of a learned
single Judge in Sabitri Debi's case (1979) 47 Cut LT 266:
(AIR 1979 Ori 140 ) (supra) in view of the decision of the
Apex Court in: AIR 1979 SC 14 has taken the view that
even if the Court has the power to compare the disputed
writing with the admitted or proved writing to ascertain
CMP No.838 of 2016 Page 12 of 22
whether the disputed writing is that of the person who is
stated to have written, as a matter of prudence the Court
should not venture such comparison by itself and should
take the assistance of expert's opinion In arriving at a
finding. ”
11.6 . In the case of Shalini Shyam Shetty v. Rajendra Shankar
Pati: (2010) 8 SCC 328 the Supreme Court has held as follows : -
62. On an analysis of the aforesaid decisions of this Court,
“
the following principles on the exercise of High Court's
jurisdiction under Article 227 of the Constitution may be
formulated:
a) A petition under Article 226 of the Constitution is
different from a petition under Article 227. The mode of
exercise of power by High Court under these two Articles
is also different.
(b) In any event, a petition under Article 227 cannot be
called a writ petition. The history of the conferment of
writ jurisdiction on High Courts is substantially different
from the history of conferment of the power of
Superintendence on the High Courts under Article 227
and have been discussed above.
c) High Courts cannot, at the drop of a hat, in exercise of
its power of superintendence under Article 227 of the
Constitution, interfere with the orders of tribunals or
CMP No.838 of 2016 Page 13 of 22
courts inferior to it. Nor can it, in exercise of this power,
act as a court of appeal over the orders of the court or
tribunal subordinate to it. In cases where an alternative
statutory mode of redressal has been provided, that
would also operate as a restrain on the exercise of this
power by the High Court. (d) The parameters of
interference by High Courts in exercise of their power of
superintendence have been repeatedly laid down by this
Court. In this regard the High Court must be guided by
the principles laid down by the Constitution Bench of this
Court in Waryam Singh5 and the principles in Waryam
Singh (Supra) have been repeatedly followed by
subsequent Constitution Benches and various other
decisions of this Court.
(e) According to the ratio in Waryam Singh (Supra),
followed in subsequent cases, the High Court in exercise
of its jurisdiction of superintendence can interfere in
order only to keep the tribunals and courts subordinate
to it, “within the bounds of their authority”
(f) In order to ensure that law is followed by such
tribunals and courts by exercising jurisdiction which is
vested in them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High
Court can interfere in exercise of its power of
CMP No.838 of 2016 Page 14 of 22
superintendence when there has been a patent perversity
in the orders of the tribunals and courts subordinate to it
or where there has been a gross and manifest failure of
justice or the basic principles of natural justice have
been flouted
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of law or
fact or just because another view than the one taken by
the tribunals or courts subordinate to it, is a possible
view. In other words the jurisdiction has to be very
sparingly exercised
i) High Court's power of superintendence under Article
227 cannot be curtailed by any statute. It has been
declared a part of the basic structure of the Constitution
by the Constitution Bench of this Court in the case of L.
Chandra Kumar vs. Union of India & others, reported in
(1997) 3 SCC 261 and therefore abridgement by a
Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather
cognate provision, like Section 115 of the Civil
Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut down
the ambit of High Court's power under Article 227. At
the same time, it must be remembered that such statutory
amendment does not correspondingly expand the High
CMP No.838 of 2016 Page 15 of 22
Court's jurisdiction of superintendence under Article
227.
(k) The power is discretionary and has to be exercised on
equitable principle. In an appropriate case, the power
can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered
power of the High Court under Article 227, it transpires
that the main object of this Article is to keep strict
administrative and judicial control by the High Court on
the administration of justice within its territory.
(m) The object of superintendence, both administrative
and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in
such a way as it does not bring it into any disrepute. The
power of interference under this Article is to be kept to
the minimum to ensure that the wheel of justice does not
come to a halt and the fountain of justice remains pure
and unpolluted in order to maintain public confidence in
the functioning of the tribunals and Courts subordinate
to High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of relief
in individual cases but should be directed for promotion
of public confidence in the administration of justice in
the larger public interest whereas Article 226 is meant
CMP No.838 of 2016 Page 16 of 22
for protection of individual grievance. Therefore, the
power under Article 227 may be unfettered but its
exercise is subject to high degree of judicial discipline
pointed out above.
(o) An improper and a frequent exercise of this power
will be counter-productive and will divest this
extraordinary power of its strength and vitality . ”
11.7. This Court in the case of Sibaram Subudhi (supra),
regarding exercise the power of superintendence of the High Court
under Article 227 of the Constitution and power under Section 75
of the Civil Procedure Code and Order 26, Rule 10- A of the CPC,
has held as follows:-
The parameters of challenge have been laid down
“10.
by the apex Court in catena of decisions. Under Article
227 of the Constitution, the High Court has the power of
superintendence over all Courts and Tribunals throughout
the territory in relation to which it exercises jurisdiction.
The power to issue writs is not the same as the power of
superintendence. The power of superintendence conferred
upon every High Court by Article 227 is a supervisory
jurisdiction intended to ensure that subordinate Courts
and Tribunals act within the limits of their authority and
CMP No.838 of 2016 Page 17 of 22
according to law. Under Article 227 what comes up
before the High Court is the order or judgment of a
subordinate court or tribunal for the purpose of
ascertaining whether in giving such judgment or order
that subordinate court or tribunal has acted within its
authority and according to law. The proceeding under
Article 227 is not an original proceeding as held by the
apex Court in the case of Umaji Keshao Meshram and
others v. Smt. Radhikabai and another, AIR 1986 SC
1272.
11. The power under Article 227 of the Constitution is
intended to be used sparingly and only in appropriate
cases in order to keep the subordinate Courts and
Tribunals within the bounds of their authority and not for
correcting mere errors as held by the apex Court in the
case of Waryam Singh and another v. Amarnath and
another, AIR 1954 SC 215.
12. Section 75 of the Civil Procedure Code (hereinafter
referred to as "the CPC") defines the power of Court to
issue commissions. The said section was amended by Act
104 of 1976. Clauses (e) to (g) were inserted by the
aforesaid amendment. The detail provisions of
commissions have been set out in Order 26 of the CPC. As
a consequence of the amendment made in the CPC, new
CMP No.838 of 2016 Page 18 of 22
Rules 10-A to 10-C have been inserted under Order 26 of
the CPC. The power of the court to issue commission has
been widened by virtue of the amendment made in Section
75 of the CPC. Clause (e) of Section 75 of the CPC
empowers the Court to issue commissions to hold a
scientific, technical, or expert investigation when it is
needed for determination of any issue before the court.
Order 26 Rule 10-A of the CPC 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 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
thereon to the Court.
13. A Division Bench of this Court, in the case of
Natabar Behera v. Batakrishna Das: 62 (1986) CLT 613
came to hold that scientific examination means
ascertainment by observation and experiment critically
tested, systematized and brought under a set of principles.
Comparison of a disputed signature with the admitted
ones involves specialized skill based on study. It,
therefore, comes within the scientific investigation and
cannot be done by a lay man without having the scientific
knowledge and specialisation on the subject. The
CMP No.838 of 2016 Page 19 of 22
handwriting experts for the purposes of comparison of the
handwritings take enlarged photographs of the disputed
and the admitted writings and examine the same by
application of recognized principles and by critical tests
which in most cases cannot be conveniently conducted
before the court. In the said case, the genuineness of the
signatures in the agreement having been disputed, the
learned trial court issued a commission for investigation
by an expert. The said order was affirmed in the aforesaid
case.
”
ANALYSIS AND CONCLUSION
12.
After a careful reading of the provisions of Sections 75 and
Order 26, Rule 10 -A of the C.P.C; and the decisions referred to
above, it is apparent that a Judge may use his own eyes to compare
a disputed handwriting or signature with an admitted one without
the aid of a handwriting expert, but it is a rule of prudence to obtain
opinion and assistance of a handwriting expert in such matters.
13. It is also no longer res integra that power under Article
227 of the Constitution of India , is to be exercised sparingly and
interference is warranted when the impugned order suffers a
manifest illegality, a patent jurisdictional error or has resulted in
CMP No.838 of 2016 Page 20 of 22
gross failure of justice with the High Court has to see if the trial
Court or appellate court acted within the limits of their authority
and such power is to be used sparingly and not exercised for
correction of mere errors.
14 . After hearing the learned counsel for the parties and the
decisions referred to above, I am of the considered view that the
opinion of the Scientific expert who will examine the handwriting
and signatures of the plaintiff which he has disputed / denied with
his admitted signatures, would aid the learned trial court in
deciding the suit .
15. The direction of the learned trial court to send the disputed
signatures and admitted signatures six sheets of specimen
signatures each containing six signatures in each sheet i.e. 6 x 6 =
36 signatures of the plaintiff to the S.P., CID, CB, Odisha for
comparison, cannot be found fault with.
16. In order to decide the suit, power under Order 26, Rule 10-A
of the CPC could also have been exercised suo motu by the learned
trial court, if it felt that such scientific examination was necessary
for arriving at a correct decision in the suit. Hence I find no
CMP No.838 of 2016 Page 21 of 22
illegality or perversity in the impugned order that it passed such an
order on the application of the defendant.
17. The evidence of the plaintiff had not been completed when
the impugned order was passed. In the meanwhile about ten years
have elapsed. It would therefore be in the interest of justice if the
documents are sent for scientific examination (as directed by the
impugned order), after completion of evidence of the plaintiff.
18. The learned trial Court should make an endeavour for
disposal of suit within a period of six months.
19.
As I do not find any ground to interfere with the impugned
order in exercise of power under Article 227 of the Constitution of
India, the CMP is dismissed.
20. Interim order passed in Misc case No 839 of 2016 stands
vacated and the Misc case is disposed of.
21. Copy of this order be communicated to the learned Senior
Civil Judge, Rairangpur in Civil Suit No.113 of 2014 by the
Registry forthwith.
(Savitri Ratho)
Judge
Orissa High Court, Cuttack
st
Digitally Signed
Dated, the 31 October , 2026 /RKS
Signed by: RANJAN KUMAR SETHI
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 19:50:40
Signature Not Verified
CMP No.838 of 2016 Page 22 of 22