2005 PLP 1501 (MLD)

This Civil Revision has been filed to challenge the order dated 1-10-2004 passed by learned Additional District Judge, Bahawalpur whereby application of the petitioner (defendant before the learned Additional District Judge, in a suit for recovery of Rs.5,60,000 filed by the respondent), for comparison of his alleged thumb impressions on the disputed pro note and receipt, was dismissed.

2. Facts briefly stated are that Fateh Muhammad respondent/plaintiff filed a suit for recovery of Rs.5,60,000 against the petitioner on the basis of pro note and receipt dated 4-2-1997. The petitioner was granted leave to appear and defend the suit and consequently he filed his written statement on 28-10-1998 wherein he denied the execution of pro note and receipt in question and termed the same as forged and fictitious. The learned trial Court framed issues. The respondent/plaintiff concluded his affirmative evidence on 26-10-2001 and thereafter the petitioner/defendant started his evidence. During the course of his evidence before its conclusion, the petitioner moved an application before the learned trial Court on 4-9-2004 praying that his alleged thumb-impressions on the disputed pro note and receipt be got compared from Handwriting Expert/Finger Print Expert. This application was opposed by the respondent/plaintiff; with the result that the learned trial Court vide his order dated 1-10-2004 dismissed the same holding the same having been filed after a period of six years. This order has now been challenged through this Civil Revision. 3. learned counsel for the petitioner has vehemently contended and rightly so that as comparison of thumb impression by a Handwriting Expert is one of the modes of evidence, therefore, the petitioner was within his right to move the said application and his evidence was yet in progress and had not concluded therefore, the learned trial Court was not justified in dismissing the prayer on the ground of mere delay. In this respect, the learned counsel has placed reliance on the case reported in PLD 1995 Supreme Court 381.

4. Conversely the learned counsel for the respondent has vehemently opposed this petition by arguing that the order passed by the learned Additional District Judge/trial Court is legally correct and no illegality or irregularity has been committed in dismissing petitioner's application who was guilty of slackness, as the said application was filed after a period of six years.

5. Heard. Record perused.

6. It is a matter of fact that the petitioner has, in so many words, denied his thumb-impressions on the disputed pro note and receipt, not only in his written statement dated 28-10-1998 but had also filed a B separate suit on 28-2-1998 challenge the propriety of disputed pro note and receipt dated 4-2-1997 by stating that the same was forged and fictitious and that the respondent be restrained from claiming any amount on the basis of said pro note and receipt. Both the suits were consolidated by the order of this Court passed in Civil Revision No.456 of 1998 and consolidated issues were framed in both the suits on 16-2-2000. Hence., there is no force in the observation of learned trial Court that the petitioner did not move the application during the period of six years, whereas proceedings in both the suits, after consolidated issues, started on 16-2-2000. Consolidated issues dated 16-2-2000 indicates that Issue No.4, reads as under:-- "Whether the alleged pro note dated 16-2-2000 is result of forgery and without consideration, which is liable to be cancelled? OPD." Since the petition had to lead evidence after conclusion of respondent/plaintiff's evidence, hence, the petitioner could not be expected to move such an application before the conclusion of respondent/plaintiffs evidence after consolidated issues. A perusal of the file makes it clear that after framing of consolidated issues, the respondent/plaintiff concluded his evidence on 26-10-2001 whereas, present application by the petitioner was moved on 4-9-2004. The fact that said application was made at a 'later stage did not make any difference for the simple reason that application was moved before petitioner's evidence had concluded, hence, to say that application was filed after delay is not a correct appreciation of facts on the record. Even otherwise, it is an established principle of law that mere delay is no ground per se to disallow any application unless the delay is itself a ground for operating as estoppel against any party from moving such an application. A perusal of the relevant law i.e. Article 84 of the Qanoon -e-Shahadat Order shows that said Article does not prescribe any period, within which said application can be moved. Since producing of evidence of a Finger Print Expert is itself one of the modes of evidence recognized by law, naturally the party requiring such evidence will move c the Court when stage for moving such application is set and not at an earlier stage when still the evidence of the other party has not yet concluded. The party intending to bring such evidence may not consider such evidence necessary after recording of other party's evidence. Hence, to say that application for comparison of thumb-impressions should have been made at an earlier stage, is neither plausible nor the requirement of law. To me, after denial of the petitioner about his thumb-impressions on the disputed pro note and receipt and especially by filing a separate suit challenging the genuineness of the disputed pro note as well as the receipt, it was the responsibility of the plaintiff/respondent to have himself moved such an application. Had the petitioner/defendant not denied the thumb-impressions on the dispute pro note and receipt or had taken any evasive or ambiguous stand, the position would have been different but in the presence of expressed denial by the petitioner/defendant about his alleged thumb-impressions, the learned trial Court was under no provision of law justified in refusing such a prayer merely on the ground of delay. It has also been held by the Hon'ble Supreme Court of Pakistan in the above noted judgment that report of Finger Print Expert though not conclusive yet is helpful in arriving at a just and correct decision. It is also an established principle of law that.a party guilty of moving the Court at a belated stage can be burdened with costs in order to compensate the other party.

7. For what has been stated above, this Civil Revision is accepted, the impugned order dated 1-10-2004 passed by learned Additional District Judge/trial Court is set aside and the application of the petitioner/defendant for having his thumb-impressions on the disputed pro note and receipt, compared by the Finger Print Expert, is allowed. However, subject to payment of costs of Rs.5000 which shall be condition precedent before obtaining specimen thumb-impressions of the petitioner, through some police proficient, in Court. In case, the petitioner fails to pay Rs.5000 as costs, the learned trial Court/Additional District Judge would be at liberty to refuse to obtain his specimen thumb-impressions for sending the same to Finger Print Expert. H.B.T./G-127/L Revision accepted.