1994 PLP 484 (SCMR)

‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Leave to appeal was granted to consider whether in the facts and circumstances of the case, High Court was right in holding that revisional jurisdictional under S. 115, Civil Procedure Code, 1908, was not attracted and more particularly whether First Appellate Court acted in the exercise of its jurisdiction illegally or with material irregularity affecting final decision in appeal. Ali Akbar, Advocate‑on‑Record for Petitioners. Usman Ghani Rashid, Advocate Supreme Court instructed by A.A, Dastagir, Advocate‑on‑Record for Respondent. Date of hearing: 11th March, 1984. ZAFFAR HUSSAIN MIRZA, J.‑‑‑The petitioners are the legal representatives of Saheb Khan and were substituted in his place on his death during the pendency of the proceedings in the High Court. Saheb Khan had brought a suit for specific performance of an agreement dated 30‑10‑1962 under the terms whereof the respondent is alleged‑to have undertaken to sell to Saheb Khan an urban immovable property. The main issue between the parties before the trial Court was whether the respondent had executed the alleged agr6ement. The trial Court having found in favour, of the plaintiff decreed the suit for Specific Performance of the contract. However, on appeal the learned IInd Additional District Judge, Larkana took the contrary view and reversed the finding on the aforesaid issue, holding that the evidence on record did n6t prove the signature of the respondent on the document incorporating the alleged agreement between the parties. In coming to this conclusion the leaned Additional District Judge took into consideration mainly the fact that the document was got attested by an Oath Commissioner after a long delay of about nine years from the date of its alleged execution and that there was contradiction in the evidence of the two attesting witnesses as to the place of the execution of the agreement. Further as on a comparison of the disputed signature with the admitted signatures of the respondent, the learned Judge was of the opinion that there were dissimilarities between the two, he held that it was the duty of the plaintiff to have examined a handwriting expert for the comparison of the signatures. Feeling aggrieved by the appellate judgment and decree passed by the learned Additional District Judge, the petitioners approached the Sindh High Court in revision to challenge the same. However, by the impugned judgment in this petition dated 14‑4‑1983 the learned Judge declined to interfere on the view that a finding of fact was not liable to be challenged in the revisional jurisdiction of the High Court. After perusing the judgment of the learned Additional District Judge we find that he appears to have approached the question of the proof of the basic document on which the suit was brought on the basis that the plaintiff was required to prove that it was signed by the defendant beyond any reasonable doubt before being entitled to a decree for Spec Performance. Further, as already stated, he also proceeded on the assumption ‑that it was necessary for the plaintiff to examine a handwriting expert in proof of the disputed signature. In view of these circumstances we feel that the approach of the learned Additional District Judge seems to be contrary to the well -established rule of decision in Civil proceedings, namely, the preponderance of evidence adduced on either side. In this case the plaintiff had examined the scribe of the agreement in question and the two attesting witnesses who seem to have supported the plaintiff that the document was signed by the respondent in their presence in token of the acceptance of the terms of agreement. As regards the attestation by the Oath Commissioner it was pointed out that an agreement for sale does not require attestation in law and even otherwise it was attested by marginal witnesses and, therefore, the subsequent attestation by the Oath Commissioner after the lapse of nine years was not a material circumstance which has been made one of the main considerations for holding the document as spurious, It was further argued that although the High Court accepted the proposition that it is not a legal requirement for the proof of handwriting or signature to examine an expert, a yet the High Court failed to consider the effect of this proposition on the evidence as a whole submitted by the plaintiff in proof of the contract between the parties. After hearing the learned counsel we are of the view that a question of law has arisen for consideration whether in the facts and circumstances of this case the High Court was right in holding that the revisional jurisdiction under section 115 of the Code of Civil Procedure was not attracted in this case and more particularly whether the learned Additional District Judge acted in the exercise of his jurisdiction illegally or with material regularity affecting the final decision in the appeal before him. Leave is accordingly granted. Security for costs Rs.2,

000. The learned counsel has submitted that a, suit for possession has been filed by the respondent against the petitioner and requests for stay of the proceedings thereof. But for the present we, are not inclined to grant the prayer as there is no immediate apprehension of dispossession of the petitioner. A.A./S‑804/S Leave granted.