1992 PLP 1043 (CLC)

2. On the basis of an agreement to sell, dated 14‑5‑1975, respondent No.1 had on 30‑7‑1979 filed a suit against Sh. Fazal Hussain, the predecessor of the present petitioners and Mst. Razia Begum respondent No.2, for specific performance of the contract o sale. It was contested by Sh. Fazal Hussain and in view of the pleadings of the parties issues were framed on 14‑12‑1980. On 20‑1‑1981, the learned trial Judge rejected the plaint under Order 7, Rule 11, C.P.C. on the ground that the plaintiff could enforce the penalty clause embodied in the agreement to sell. Respondent No.1 filed R.FA. No.32 of 1981, challenging the rejection of his plaint and it was eventually accepted on 4‑10‑1983. As , a result, the case was remanded for decision on merits.

3. It appears that meanwhile Sh. Fazal Hussain brought an ejectment application against the son of Sh. Hassan Ali in respect of a portion of the same house. It was accepted on 15‑12‑1979. The appeal filed by the ion of respondent No.1 was dismissed on 15‑3‑1980. He then filed Writ Petition No.3229 of 1980 while his father filed Writ Petition No.2518 of 1980, challenging the order of eviction. Both the writ petitions were dismissed on 7‑4‑1980. C.P.S.LA. No‑40 of 1980 filed by respondent No.1 against the dismissal of his writ petition also failed. He then brought a declaratory suit challenging the order of ejectment passed against his son and certain other' orders. It was dismissed on 27‑4‑1980. Sh. Fazal Hussain initiated execution proceedings for the enforcement of ejectment order. The same were objected to by respondent No.1 but his objection petition was dismissed on 22‑5‑1980. Revision petition filed by him met the same fate on 12‑7‑1980. He then filed Writ Petition No.8737 of 1980 which was dismissed on 11‑8‑1983. He also filed C.P.S.LA. No‑1273 of 1983 but withdrew the same on A‑6‑1983. He then brought a suit for permanent injunction but its plaint was rejected on 15‑12‑1989.

4. After the remand of the suit for specific performance of contract, respondent No.1 had applied to the trial Court for causing the appearance of Sh. Fazal Hussain in order to obtain his specimen signatures for comparison with his alleged signatures on the agreement to sell, forming basis of the suit as the defendant denied its execution and the signatures thereon attributed to him.

5. The application was opposed on behalf of the defendant, inter alia on, the ground that he was ill and unable to appear. The learned Civil Judge, vide his order dated 29‑6‑1985, appointed a local commissioner for obtaining his specimen signatures but he reported that the defendant was not available. This order as also the earlier order, dated 29‑6‑1985, were challenged in Civil Revision No.1673 of 1985 but it was eventuall withdrawn on 19‑1‑1991 as meanwhile Sh. Fazal Hussain defendant died.

6. Respondent No.1 on account of the death of Sh. Fazal Hussain defendant brought his legal representatives (the present petitioners and respondent No.2 herein) on the record by filing an amended plaint. He then made two applications to the learned trial Judge, one for summoning the record of L.DA. in respect of the disputed property for comparison of the signatures of Sh. Fazal Hussain, the deceased defendant, with his alleged signatures on the agreement to sell and the second application for obtaining photographs of those signatures by the Handwriting Expert.

7. Both the applications were resisted inter alia on the ground that the documents sought to be summoned were not relied upon by the plaintiff and that these documents did not bear the signatures of Sh. Fazal Hussain nor the photographs of the so‑called signatures could be taken by the Handwriting Expert. These applications were disposed of by two separate orders giving rise to Civil Revision No.1318 and Civil Revision No.1319 of 1991. A subsequent order passed by the trial Court on 7‑10‑1991 gave rise to Civil Revision No.1783 of 1991. These three civil revisions are now being dealt with ad seriatim.

8. In this civil revision the petitioners as legal heirs of Sh. Fazal Hussain, the deceased defendant, call in question the order, dated 20‑7‑1991, by which the learned Civil Judge accepted the application of plaintiff‑respondent No.1 for summoning the original application in form `A' 49 and form `B' of Sh. Fazal. Hussain from L.DA. for the comparison of his signatures thereon with his alleged signatures on the agreements to sell dated 14‑5‑1975 and dated 29‑6‑1977 through the Handwriting Expert.

9. The main contention of the learned counsel for the petitioners is that these documents were not relied upon by the plaintiff‑respondent No.1 in the list of reliance filed by him with the plaint and that the documents summoned by the Court were forged, smuggled and fabricated and the so‑called signatures of Sh. Fazal Hussain borne thereon could not be compared with his alleged signatures on the agreement to sell. According to him, the learned trial Judge, while disposing of this application, prematurely recorded a definite finding about the genuineness of the documents summoned by him and it caused prejudice to his clients.

10. The summoning of the documents, which formed part of the official record of the L.DA. and a presumption of correctness is attached to such record under the law of evidence, was necessitated on account of the death of Sh. Fazal Hussain defendant, who during the pendency of the civil suit against him, so long as he remained alive, avoided to furnish his specimen signatures to the trial Court despite its efforts. Therefore, the question of this document not having been relied upon by the plaintiff in the suit brought by him did not arise and the objection raised by the petitioners in this regard was without substance. However, I am inclined to agree with the learned counsel for the petitioners that the learned Civil Judge, while disposing of the application, should have avoided to record a finding that the document sought to be summoned could not be a disputed or a forged one. He seems to have used this language inadvertently or due to lack of adequate experience and it will be still open to the petitioners to challenge its genuineness at the proper time. That proper time would be when the documents will be brought by the concerned official and formally produced before the trial Court for its further use by Handwriting Expert. The petitioners' counsel at that time would be within his rights to cross‑examine the person producing it with a view to challenge its genuineness. The contention of the petitioners' counsel is that it was a forged and fabricated document and for that reason it could not be summoned for the comparison of signatures of Sh. Fazal Hussain with his alleged signatures on the agreement to sell, is obviously without force because if this argument is accepted then it would also tantamount to prejudging its inaccuracy, a course which cannot be adopted at this stage. There is, therefore, no substance; in the civil revision and the same is dismissed with costs.

11. In this civil revision the defendants‑petitioners, as legal representatives of Sh. Fazal Hussain, deceased defendant, call in question the order of the learned trial Judge, dated 20‑7‑1991, accepting the application of the plaintiff respondent No.1 for allowing handwriting expert to take photographs of certain documents being summoned by him from the L.DA. for comparison of Sh. Fazal Hussain's signatures thereon with his alleged signatures on the disputed agreements to sell. The learned counsel for the petitioners advanced same or similar arguments which he addressed in support of Civil Revision No.1318 of 1991.

12. For the same reasons, which I gave for the dismissal of the aforesaid civil revision, this civil revision is also dismissed with costs. There could be no valid objection to the Handwriting Expert's taking photographs of the documents summoned by the plaintiff‑respondent No.1 from the L.DA. for comparison of the signatures once that document is held genuine.

13. By this civil revision the petitioners, who are defending the suit of plaintiff‑respondent in the trial Court as legal representatives of Sh. Fazal Hussain, deceased defendant, call in question the order, dated 7‑10‑1991, by which the learned trial Judge, accepted the application of the plaintiff respondent for formally bringing on the record of the case for the purpose of his evidence two official documents of L.DA. with a view to meet the legal objection of his opponent that the documents had not been formally brought on the record by means of an application to that effect. The impugned order is in fact an offshoot of the two earlier orders which are subject of challenge in the abovementioned two civil revisions. With reference to the interim order, dated 18‑9‑1991, passed by a learned Judge of this Court, who was then seized of the matter, which stands challenged in Civil Revision No.1318 of 1991, the learned counsel for the petitioners submits that despite a direction in that order to dispose of the pending application independently and uninfluenced by the previous orders on two applications, the learned trial Judge still repeated the mistake by referring to those orders and expressing his inability to go against them. He submits that the plaintiff‑respondent, without seeking formal permission of the trial Court to bring on the record the documents in question from the office of L.DA., sought permission to use the same for comparison of signatures as an integral part of his evidence and even the learned trial Judge did not advert to this aspect of the matter while accepting his applications vide his earlier orders, dated 20‑7‑1991. In his opinion, it was a clear violation, of Order VII, Rule 18 and Order XIII, Rule 2, C.P.C. and the' documents could not be brought on the record as the same were not mentioned in the list of reliance. In his view, it was necessary for the plaintiff respondent to show good cause for bringing on the record certain documents, not mentioned in the list of reliance, at a subsequent stage and in the instant case he had failed to show such cause.

14. The learned counsel appearing on behalf of the plaintiff‑respondent has tried to support the impugned order on the ground that in the changed circumstances caused by the death of Sh. Fazal Hussain, his client had to search out certain documents from L.DA. and requested the Court to bring it on the record for the comparison of deceased's signatures thereon with the questioned documents and the learned trial Judge, finding his request genuine, allowed him to do so and to meet a technical objection of the defendants petitioners an application was made for formally bringing the documents on the record fox that purpose. According to the learned counsel, since the learned trial Judge. had already passed orders on two separate applications moved by the plaintiff‑respondent, the order now under challenge was a mere formality which had to be passed in consonance with two orders and he did not commit any mistake nor did he violate the directions of the learned Judge given in the interim order, dated 18‑9‑1991, passed in the pending Civil Revision No.1318 of 1991. He is of the view that the provisions of C.P.C. relating to the list of reliance are meant to prevent fraud and they are not meant to debar a party to bring its genuine evidence on the record. In this respect he quotes Muhammad Hussain and others v. Settlement Commissioner, Lahore and others PLD 1984 Lah. 139 and lqbal Ahmad Khan Lodhi v Mirza Muhammad Ajmal PLD 1983 Kar. 501.

15. As already remarked, during the course of discussion on Civil Revision No.1318 of 1991, the death of Sh. Fa7al Hussain defendant‑petitioner, who during his lifetime had avoided to furnish his signatures to the trial Court for comparison with his alleged signatures on questioned documents, had compelled the plaintiff‑respondent to search for his genuine signatures on some reliable documents for comparison with his alleged signatures on the agreement to sell and he eventually happened to lay hands on the record of allotment of the plot of the disputed property to him, available in the office of L.D.A. He, therefore, requested for its production through the concerned official for the purpose of comparison and also sought permission of the Court to allow the Handwriting Expert to take photographs for that purpose. The trial Court acceded, to his request. During the course of discussion on those applications the learned counsel for the defendants‑petitioners pressed into service certain legal technicalities in the aforesaid provisions of C.P.C. and to meet this objection the plaintiff‑respondent brought an application which was accepted by the impugned order.

16. In these circumstances, no fault can be found with the order under challenge and this revision petition is also dismissed with costs.

17. Before parting with this judgment, it may be mentioned here that the learned counsel for the plaintiff‑respondent with reference to Malik Habib Ullah Khan Tiwana v. Pakistan Cement Industries Ltd. and others 1968 SCMR 864 and Nawabzada Habib Ullah Khan v. The Pak Cement Industries Limited and others 1969 SCMR 965 wanted to oppose the maintainability of the revision petitions in support of his preliminary objection but with a view to. avoid the controversy being prolonged, he give up the preliminary objection and allowed the civil revision to be decided on merits.

18. Since the matter is very old, the learned trial Judge is directed to decide it within a period of four months, even if he is to take recourse to day to day hearing. AA./P‑10/L Revisions dismissed.