2014 PLP 222 (CLC)

AFTAB AHMED GORAR, J.

Through this Civil Revision Application the applicant Zulfiqar Ali has challenged the judgment and decree dated 9-3-2005 passed by learned lst Additional District Judge, Thatta whereby he set aside the judgment and decree dated 8-7-2002 and 15-7-2002 respectively passed by learned Senior Civil Judge, Sujawal in F.C. Suit No.133 of 1995 whereby he dismissed the suit filed by the respondent. Precisely, the facts of the case are that the respondent filed Suit for Specific Performance of Contract and Permanent Injunction against the applicant in the Court of Senior Civil Judge, Sujawal in respect of agricultural land bearing S.No.211 measuring 16-0 acres and B. No.212 measuring 16-0 acres, total admeasuring 32-0 acres in Deh Kazi, Taluka Jati, District Thatta. It was stated in the plaint that the defendant/ applicant owned the said land who entered into an agreement on 11-1-1995 with the plaintiff/respondent in respect of the suit-land whereby, he agreed to sell the same for the total consideration of Rs.64,000/- and he received the amount of Rs.50,000/- being part payment and it was decided that remaining amount of Rs.14,000/- would be paid at the time of transfer of the "Khata". Possession was handed over to the plaintiff. As per terms of the agreement, on 1-11-1995 the plaintiff approached the defendant but he refused to accept the remaining amount and perform his part of contract and after having failed in his efforts, the plaintiff filed the above suit. Defendant/applicant filed written statement wherein he denied the averments made in the plaint. He asserted that the sale agreement was a forged document and that he had not received any sale consideration nor had executed the sale agreement and that the plaintiff had got false and frivolous entry in the `khasra girdawari' He also raised legal pleas and prayed for dismissal of the suit. On the pleadings of the parties, learned trial Court framed the issues and after recording of evidence and hearing the counsel for the parties, dismissed the suit vide judgment and decree dated 25-2-2000 and 3-3-2000 respectively, mainly on the basis of the opinion of Handwriting Expert that the signature of the applicant on the sale agreement was not genuine. The said judgment was challenged in appeal and the learned IInd Additional District Judge, Thatta vide Judgment dated 21-9-2000 set aside the judgment and decree passed by the trial Court and remanded the case for deciding the objection regarding production of the documents Exhs.85-A to 85-H raised by the counsel for the applicant. On remand, the parties were provided opportunity to lead the evidence and after hearing the counsel for the parties, learned trial Court again dismissed the suit vide judgment and decree dated 8-7-2002 and 15-7-2002 respectively. The said judgment and decree were challenged in appeal and the learned 1st Additional District Judge, Thatta vide judgment and decree dated 9-3-2005 set aside the judgment and decree of the trial Court and decreed the suit as prayed. The said judgment and decree have been challenged in the instant Revision Application. I have heard learned counsel for the parties and have gone through the material available on the record. Learned counsel for the applicant contended that the judgment passed by the appellate court is bad in law and contrary to the facts of the case. He submitted that the appellate court did not appreciate the report of the Handwriting Expert which clearly proved that the signatures on the sale agreement are forged one being not of the applicant. According to him, learned appellate court failed to appreciate and misconceived the true interpretation and scope of the Qanun-e-Shahadat Order, 1984. He asserted that the plaintiff/respondent failed to produce sufficient oral or documentary evidence to substantiate the execution of the said agreement to sell and even in the second round of litigation despite opportunity given, he failed to produce any evidence. He further contended that no evidence was produced by the respondent/plaintiff to discharge his burden regarding the receiving of token money in respect of the so-called agreement to sell. He relied upon the decisions reported in 1992 CLC 140, 1990 CLC 60, 2011 CLC 309, 1977 SCMR 433, 1994 SCMR 583, 1993 SCMR 238, 1993 CLC 747 and 1993 MLD

401. He prayed for setting aside of the judgment and decree passed by the appellate court. Conversely, learned counsel for the respondent contended that the revision is not maintainable; the impugned order passed by the appellate court is in accordance with the law and norms of justice. He contended that the learned trial Court illegally and unlawfully dismissed the suit. According to him, the opinion of the Handwriting Expert is a weak piece of evidence and the same is not infallible and cannot be termed as final word on the subject. He asserted that it would be dangerous to place implicit reliance on the opinion of the Handwriting Expert as an expert is unconsciously prejudiced in favour of the party calling him. He further contended that sufficient evidence was produced in support of the execution of sale agreement and besides, the defendant also examined attesting witnesses, so also scribe of the sale agreement who categorically deposed that the agreement was entered into between the parties in their presence. He contended that the evidence of the witnesses should be given preference over the opinion of the Handwriting Expert particularly when their evidence could not be shaken/shattered despite having been cross-examined by the other side. He further contended that initially the suit was dismissed and in appeal the appellate court remanded the case with the direction to decide the matter afresh after considering the objection raised in respect of the production of documents Exhs.85-A to 85-H, however, in the second round the learned trial Court did not, at all, consider the said objection and straightaway went to discuss the issues framed by it, as such the judgment and decree passed by the trial Court was rightly set aside by the appellate court. He relied upon the cases reported in 2004 SCMR 1859, PLD 2005 Quette 1, 2006 CLC 779 and 1995 SCMR 1237. From the perusal of the record it reveals that the plaintiff/ respondent in support of his claim examined Rasool Bux and Mehrab who are attesting witnesses of the sale agreement. They categorically deposed that the sale agreement was executed in their presence and a sum of Rs.50,000/- was acknowledged in their presence and that the plaintiff was already in possession of the said land being `hari'. In the circumstances his possession was to be protected under section 53-A of the Transfer of Property Act and he was deemed to be in possession of the land in question in part performance of the contract. A document could be proved under section 73 of the Qanun-e-Shahadat Order, 1984 by its production for the inspection of the court and its execution may be proved under Articles 78 and 79 of the Order, 1984. As per Article 78, the signature on the document could be proved by the person who signed it and under Article 79, the document could also be proved through the scriber of the document. Such requirement was fulfilled by the plaintiff by producing the original agreement for the inspection of the court as Exh.77-B and examining two attesting witnesses, so also the scriber of the document namely Abdul Hamid as Exhs.78, 79 and 80 respectively. During the cross-examination, counsel for the other side remained unsuccessful to shake/shatter their evidence. The defendant/applicant in rebuttal, examined two witnesses. Although he denied to have signed the sale agreement, however he miserably failed to justify as to how the name of the plaintiff transpired in the "Khasra girdawari". His stand was that the said entries in the `khasra girdawari' are fictitious. If this was the position, then what prevented him to challenge these entries before the concerned Revenue Authorities. It is settled law that the presumption of truth is attached to the entries of the `khasra girdawari' register until and unless the same are proved to be fictitious and forged and, thus, cancelled by the competent authorities. So far as the opinion of the Handwriting Expert is concerned, the applicant examined the Handwriting Expert to prove his plea that his signature allegedly appearing on the sale agreement are forged. The Handwriting Expert namely Ghulam Akbar in his examination-in-chief has not testified his report and even in his cross-examination he did not opine that the signature on the sale agreement were forged. Besides, during the evidence the report of the Handwriting Expert and other documents viz. enrolment cards and admission slip were produced but the production of these documents was objected to by the counsel for the respondent and the learned trial Court observed that such objection will be considered at the time of final decision. In fact, in the first round of litigation, the matter was remanded by the appellate court mainly for the reason that the said objection was not considered by the trial court while dismissing the suit and it was directed that the matter be decided afresh after considering the said objection. However, perusal of the entire judgment passed by the trial Court reveals that there is no mention of such objection in the judgment and the same was not, at all, touched and discussed by the trial Court. In the circumstances, I am afraid, no reliance could be placed upon the report of the Handwriting Expert. Moreover, the Handwriting Expert during his evidence did not state in clear words that the signature appearing on the sale agreement is forged one. It would be advantageous to reproduce hereunder the relevant portion from the deposition of the Handwriting Expert namely Ghulam Akbar Khan:

"It is fact that at the place of my signature, my name and seal is not affixed. The documents as I have already stated called way of signature is not different. It is incorrect to suggest that I depose falsely as above. Party was not heard personally." Moreover, it is now well settled that the opinion of the handwriting expert is not final word on the subject and it will be dangerous to place implicit reliance on the opinion of the handwriting expert. In the case reported as Ashfaq Khalid v. The State (PLD 2005 Quetta 1) it was held as under :

"The opinion of the Handwriting Expert is not final word on the subject ... ... ...Report of the Handwriting Expert is not infallible ... ... ...It would be dangerous to place implicit reliance on the opinion of the Handwriting Expert ... ... An Expert is unconsciously prejudiced in favour of the party calling him The evidence of Handwriting Expert is neither only nor the best method of proving handwriting or signature of a person. It is at the best only opinion evidence where direct evidence of the nature adduced in the case is available. No illegality is committed by accepting direct evidence in preference to the Handwriting Expert's opinion... ... ......The Expert opinion is admissible only to aid the Court in forming its opinion and in order to form its opinion the Court is competent to call for such opinion if it feels it necessary ... ... ....The Court can come to its own conclusion independently of the Expert opinion after taking into consideration the fact and circumstances of the particular case." In the case of Syed Muhammad Umer Shah v. Bashir Ahmed (2004 SCMR 1859) the honourable Supreme Court held as under:

"After scanning the entire evidence on record and after going through the concurrent findings, we are of the firm view that the only opinion of a Handwriting Export, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving inference, altogether, to the contrary." It is also worthwhile to point out here that the learned trial Court although obtained the signatures of the applicant but did not bother to compare the signature on the sale agreement. The trial Court could have inspected the sale agreement and then would have opined about the genuineness or otherwise of the signature because, as per settled principle of law, the Expert opinion is admissible only to aid the Court in forming its opinion and in order to form its opinion the Court is competent to call for such opinion if it feels it necessary, however, the Court can come to its own conclusion independently of the Expert's opinion after taking into consideration the facts and circumstances of the particular case. In the present case, as stated above, the attesting witnesses of the sale agreement as well as scribe have fully supported the execution of the sale agreement in their presence and the other side could not shake/shatter their evidence. In this view of the matter, the trial Court ought to have placed reliance on the evidence of these witnesses instead of the report of the Handwriting Expert which document, even otherwise, was admitted subject to decision of the objection at the time of the final disposal of the case which was, at all, not considered by the trial Court while dismissing the suit. The upshot of above discussion is that I do not feel myself inclined to interfere with the judgment and decree passed by the appellate court on 8-3-2005 in Civil Appeal No.78 of 2002, with the result the same is maintained and instant revision application is dismissed in limine. JJK/Z-10/K Revision dismissed.