1985 PLP 214 (SCMR)

SHAFIUR RAHMAN, J.-- The petitioners who have been unsuccessful as plaintiffs seeking specific performance of an agreement seek leave to appeal against the judgment of the Lahore High Court dated the 3rd of April, 1984 whereby their regular second appeal was dismissed with costs throughout. Asif Hussain, the predecessor-in-interest of the defendants respondents was allotted as a Government servant free of cost a plot of land measuring 9 marlas in Satellite Town, Rawalpindi. Niaz Muhammad Quraishi predecessor-in-interest of the petitioner and respondent No.l was his father-in-law and under a family arrangement came to occupy the premises. Niaz Muhammad died in 1974. A suit was instituted by the petitioners against Asif Hussain claiming that under an oral agreement he had agreed to sell this plot in favour of their predecessor-in-interest for Rs.10,000 and Niaz Muhammad had made construction on the plot. The agreement was formally reduced to writing on 11th of December, 1968 after the entire price had been paid. The claim of the petitioners was denied by Asif Hussain who died during the pendency of the suit. The contest centred round the existence, the genuineness and the legal effect of the agreement to sell, dated 11-12-1968. The case set out by Asif Hussain was that he never entered into such an agreement and that the suit was a counter-blast to the proceedings for their ejectment initiated by him. The trial Court believed the attesting witness Shaukat Ali P.W.1 and held that the agreement was proved as also that the construction was raised by the predecessor-in-interest of the petitioners and decreed the suit with costs directing the defendants respondents to execute a regular sale deed in favour of the plaintiffs. On appeal the Additional District Judge compared himself the signatures of Asif Hussain the predecessor-in-interest of the respondents as existing on the agreement to sell with another proved signature of his and came to the conclusion that it was not genuine. He reversed the finding of the trial Court and dismissed the suit of the petitioners. In second appeal, the learned Judge in the High Court noted that reliance was placed by the parties on oral evidence led at the trial and towards the conclusion of the evidence of the plaintiff an application had been made by the petitioner for getting the signatures on the deed examined through an expert. The trial Court had not allowed the application observing that if need be, it will be referred by the Court itself. The trial Court did not either refer it to the expert or compare the signatures itself. The appellate Court compared it and found the difference. The learned Judge in the High Court observed as follows:- "On the insistence of the learned counsel I have myself compared the two sets of signatures and I find no reason to dispute the finding of the appellate Court to the effect that the signatures in the two sets do not compare." After reappraising the evidence, the learned Judge found that the finding of fact recorded by the first appellate Court was not liable to interference in second appeal and dismissed the appeal with costs throughout. The learned counsel for the petitioners has contended that comparison of the signatures by the Court itself as a substitute for the opinion of the expert has not been approved by the superior Courts. He has cited in support the case of Molapo Mojela v. Thabo Lenotholi Mojela A I R 1928 P C 276 and Province of Punjab and another v. Mst. Noor Bibi and three others 1981 C L C 1082. According to the learned counsel, there were other documents on the record which admittedly .had the signatures of Asif Hussain and, even if such a comparison was to be done by the Court it should not have been confined to the solitary document. On the legal plane we find that the latest decision of this Court is contained in Ali Ahmad alias Ali Ahmed Mia v. The State P L D 1962 S C 102 that a Court is entitled to compare the handwriting even if there be an opinion of an expert on the subject. In S.M. Zahir v. Fazal Ali Ajmeri 1974 S C M R 490 it was held that there is no rule of law which requires examination by an expert in every case. The Court itself was held entitled to compare the handwriting and to come to its conclusion. In the High Court, it was the petitioner's counsel who insisted for the comparison; got such a comparison done and the learned Judge in the High Court affirmed the view taken by the first appellate Court. We do not find any material even after looking into the document, which are sought to be referred to, to come to any different conclusion. It has to be noted that the trial Court had implicitly relied on the statement of Shaukat Ali the attesting witness. His statement, however, is of little value because he admitted that he had not seen Asif Hussain signing the disputed document. If he had actually not seen him signing he could not prove the execution of the document by Asif Hussain. We find that there is no merit in the petition and leave to appeal is refused. M . Z . M . Petition dismissed.