2023 PLP 592 (CLC)

KAUSAR SULTANA HUSSAIN, J.

This Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 has been directed against the judgment and decree dated 21.07.2017, passed by learned IVth Additional District Judge, Karachi (Central), whereby Civil Appeal No. 109 of 2006, filed by the applicant/defendant against the Judgment and decree dated 31.07.2006 and 01.08.2006 respectively, passed by the learned IInd Senior Civil Judge Karachi (Central) in Suit No.41 of 2003 against the applicant/defendant was dismissed.

2. The concise germane facts forming background to institute the Civil Suit No. 41 of 2003 for Specific Performance of Contract and Permanent Injunction by respondent/plaintiff against the applicant/defendant in the Court of learned IIIrd Senior Civil Judge Karachi (Central), which was later on administratively transferred to the learned IInd Senior Civil Judge Karachi (Central), are that the respondent/plaintiff purchased the suit property bearing No. 17/120-A, Federal "B" Area, Karachi, consisting of two shops and a house for a total sale consideration of Rs.12,00,000/- from the applicant/defendant through a written agreement to sale dated 11.04.2001 and he at the time of execution of sale agreement had paid earnest money of Rs.4,00,000/- to the applicant/defendant against total sale consideration of Rs.12,00,000/- and balance sale consideration of Rs.8,00,000/- was to be paid at the time of execution of registered sale deed; the respondent/plaintiff was in occupation of shop located in house in question prior to execution of said, sale agreement, which he had acquired on rent from applicant/defendant in the year 1972; it was mutually decided by them that the applicant/defendant would intimate the respondent/plaintiff after getting the suit property mutated but he failed to do so though respondent/plaintiff had orally requested him for doing so; the applicant/defendant had sent him a legal notice on 12.11.2002, whereby he illegally demanded arrears of rent which was replied on 12.12.2002, wherein respondent/plaintiff had denied the contentions of the applicant/defendant and requested him for the execution of sale deed and delivery of possession; the applicant/defendant had failed to perform his part of contract with calculated motive to usurp the earnest money of Rs.4,00,000/-.

3. The suit of the respondent/plaintiff was resisted by the applicant/defendant by filing his written statement.

4. It is pertinent to mention here that in earlier round of litigation the trial court had decreed the suit of the respondent/plaintiff vide judgment dated 31.03.2004, which was assailed by the applicant/defendant before Vth Additional District Judge, Karachi Central by filing Civil Appeal No. 80 of 2004. The learned appellate court had allowed the said appeal vide judgment dated 26-8-2005 with direction to the trial court to re-examine the two documents i.e. sale agreement dated 11.04.2001 (Exh.P/2) and Receipt of payment (Ex.P/3) after verification of disputed signatures of the applicant/defendant on both documents with the aid of hand writing expert in order to ascertain the validity of the documents. The respondent/plaintiff had filed IInd Appeal No. 40 of 2005 before this Court which was dismissed vide judgment dated 10.04.2006 by maintaining the judgment of appellate court dated 26.08.2005. In compliance of the direction of this court the learned trial Court had passed a fresh judgment dated 31.07.2006 and decreed the suit of the respondent/plaintiff, which was remained maintained by the appellate Court No. IVth Additional District Judge, Karachi Central vide judgment dated 21.07.2017 passed in Civil Appeal No. 109 of 2006. The said judgment dated 21.07.2017 has been impugned by the applicant/defendant before this Court through filing present Civil Revision Application No.116 of 2017.

5. I have heard the learned counsel for the parties at length and also have gone through the entire record of this Revision. The case laws relied upon by the learned counsel for the parties have also been perused. It appears from perusal of the record that the learned trial Court as well as appellate Court in the impugned judgments had already discussed the evidence in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

6. While perusing the impugned judgments of two Court below it reveals that the findings of facts of both the Courts in this matter are concurrent, discussed at length and based on appreciation of evidence. It is well settled principle of law that a concurrent finding of facts by two Courts below cannot be distributed by the High Court in Second Appeal under section 100, C.P.C. and in Revisional Jurisdiction under Section 115, C.P.C., unless the two Courts below while recording the finding of facts have either misread the evidence or have ignored any material piece of evidence on record or the finding of facts recorded by the two Courts below is perverse. It has been decided by the Hon'ble Supreme Court in Civil Appeal No. 342 of 1993, reported in PLD 1994 SC 291 (Haji Muhammad Din v. Malik Muhammad Abdullah) relied upon by the learned counsel for the respondent/plaintiff on the point discussed above is as under :- "The High Court in exercise of its jurisdiction under Section 115, C.P.C. can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case

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7. By keeping in mind the points discussed by the Hon'ble Supreme Court in several judgments and in the judgment mentioned above as well, this Court is of the view that before the learned trial Court the controversial points for paramount consideration were that; as to whether subject sale agreement dated 11.4.2001, and receipt of alleged payment of Rs.4,00,000/- by the respondent/plaintiff to applicant/defendant are genuine documents, if yes, then what would be the consequences of failure of the applicant/defendant to fulfill his responsibilities as under took by him by signing the said sale agreement. Record shows that the applicant/defendant in Suit No.41 of 2003 filed by respondent/plaintiff against him for specific performance of subject sale agreement dated 11-4-2001 submitted his written statement, wherein he has categorically denied execution of any alleged sale agreement as claimed by the respondent/plaintiff in his suit, and further he has denied that alleged sale agreement and receipt (Exh-P/.1 and P/2) had never been signed by him. Both the parties had led their respective evidence and after full dress trial the learned trial Court decreed the suit of the respondent/plaintiff in his favour, which judgment and decree were set aside by the learned appellate court for re-examination of sale agreement (Ex.P/1) and receipts (Ex.P/2) by the trial Court after verification of disputed signatures of applicant/defendant with the aid of hand writing expert's opinion. The learned trial Court had complied with the directions of the appellate court by sending documents having disputed signatures and admitted signatures of the applicant/defendant to hand writing expert. Accordingly the trial Court had received opinion of hand writing expert, and later issued summSon to him for recoding his evidence, who had appeared before the Court as witness and examined and cross-examined by the learned counsel for the respondent/plaintiff on the contents of his expert opinion.

8. I have gone through the said report of the hand writing expert which reflects that Hand writing Expert had specifically stated in his report that there is no similarity between the signatures appeared on sale agreement and receipt as compared to the other admitted signatures of the appellant/defendant.

9. I have gone through the evidence led by the parties before trial Court including the evidence of the Hand writing Expert. It would be pertinent to reproduce here the deposition of the Hand writing Expert for ready reference:- "I am working as Sr. Hand wringing expert in Criminalistics Division of Crime Branch of Garden, District South. I have summoned by this Court in the subject suit in which I have transmitted my report of comparison of defendant's signature. I produce my report bearing No. CD/OR/V/64-06, dated 6.6.2006 as Ex. CW/2. I have also brought the office copy of the referred report. (The office copy seen compared and returned). My finding arrived at after careful examination of documents answered as "Dissimilar".

10. While recording cross-examination, the Hand writing Expert once again has vehemently denied that the signatures of defendant (appellant) available on Written Statement, Vakalatnama and on his Counter Affidavit are similar with the signatures on Sale Agreement and receipt (P/2 & P/3). He further denied the suggestion of learned counsel for the respondent/plaintiff that he had submitted a fake report before this Court, after preparing in connivance with defendant Abdul Waheed. Record shows that the Hand writing Expert was working as Sr. Hand Writing Expert in Criminalistics Division of Crime Branch at Garden District South and he had under gone one year diploma course at Forensic Science Laboratory at Peshawar.

11. The learned counsel for the respondent/plaintiff has emphasized on the point that the respondent/plaintiff has produced one of the witnesses of alleged Sale Agreement before the trial Court but the applicant/defendant could not produce a single witness in support of his version that the Sale Agreement and receipt (Ex. P/1 & P/2) are forged documents. In my view categorical denial of the applicant/defendant of his alleged signatures on Sale Agreement and receipt, supported by the Expert opinion and oral evidence of the Hand writing Expert is although relevant evidence to understand that these documents are suspected documents and cannot be treated as signed by the applicant/defendant unless proved contrary. Per law only the signatory can accept or deny his signature(s) on any instrument. However, the learned trial Court and appellate Court could have also expressed their opinion on the disputed signatures of the applicant/defendant on Ex-P/1 & P/2 by making comparison of it with his admitted signatures but both the Courts below did not adopt this method in order to decide the matter with all clarity as the case of the parties is mainly based on the point of declaring Exs-P/1 and P/2 as genuine or false documents, therefore, this point was / is required utmost consideration. The learned Appellate Court was expected to decide the controversy in a just and lawful manner but unfortunately the impugned judgment passed by the learned Appellate Court is not a judgment in its true sense and is negation of Order XLI, Rules 31, 32 and 33 of C.P.C. While going through the impugned judgment it further reveals that the learned Appellate Court had mostly discussed irrelevant evidence and cross-examination of the parties which are related with the admitted facts of relationship between the respondent/plaintiff and applicant/defendant as landlord and tenant and payment of rent by the respondent/plaintiff to applicant/defendant; failure of the applicant/defendant to produce any document to prove sub letting of the shop; failure of applicant/defendant to file any application to any authority or filing suit against the respondent/plaintiff for cancellation of alleged sale agreement etc. In respect of expert opinion the learned trial Court as well as Appellate Court did not make any thoughtful and logical discussion as the learned Appellate Court mentioned in the impugned judgment that 'admittedly the expert had not observed and written down in his report that signatures of applicant/defendant Abdul Waheed over Exs-P/2 & P/3 are forged'. The learned Courts below could not realize that an expert is not a witness of fact, his evidence is of advisory character and he can depose but cannot decide. Likewise, expert evidence is opinion evidence and it cannot take the place of substantive evidence.

12. It is well settled principle of law that, report of Hand writing Expert is not binding on the Court nor does it has to rely upon such report straightaway unless there is supportive and corroborative evidence. The evidence of the Hand writing Expert is only opinion evidence and the Court may on its own, examine the documents and determine for itself whether the Hand writing is identifiable as that of the person concerned or not. Both the Courts below did not examine the documents available on record and determine for themselves as to whether the disputed signatures of the applicant/defendant are similar with his admitted signatures. However, in order to resolve this old controversy between the parties this Court itself examined and compared the signatures of the applicant/defendant as provided in Article 84 of Qanun-e-Shahadat Order, 1984 as available on the disputed sale agreement and receipt (Exs. P/1 & P/2) and on his own written statement, Vakalatnama and affidavits. While going through such documents I examined the general characteristics, formation of letters, fixed pan habits and discern the identity of the writer. I have considered the general characters of the two writings sought to be compared and scrutinized the formation of each individual letter. The admitted signatures of the applicant/defendant placed by him on his written statement, affidavit filed by him in support of his application under Section 12(2), C.P.C., memo of appeal filed by him before the District Judge Central at Karachi and few old rent receipts enclosed by the counsel for the applicant/defendant along with his statement at bar submitted by him in Civil Appeal No. 109 of 2006, have been compared by this Court with disputed signatures of applicant/defendant allegedly placed by him on Sale Agreement (Ex-P) and receipt (Ex-P/2), while comparing such signatures, I found that disputed signature of applicant/defendant is available on last page-4 only of the alleged Sale Agreement. The another disputed document is receipt of payment of Rs.400,000/- (Ex-P/2) allegedly issued by the applicant/defendant to the respondent/plaintiff after receiving token money from him under his own signature. The applicant/defendant used to sign documents in Urdu and his Urdu signature is having 9 Characters of Urdu alphabets i.e. and I found the style of writing these Urdu alphabets in his signatures on admitted documents are similar while are dissimilar with the Urdu alphabets of his signatures on disputed documents i.e. Sale Agreement (Ex-P/1) and receipt (Ex-P/2). The Urdu alphabet has been written in quite similar way and style on all admitted documents mentioned supra but I found entirely different style and way of writing on both disputed documents. The applicant/defendant from very inception of this suit has been denying his signatures on both disputed documents and also reiterated his same version during proceedings of the trial and leading evidence. The Expert has reported in his opinion and corroborated the same while leading his evidence that admitted signatures of the applicant/defendant are "dissimilar" with the disputed signatures available on Ex.P/1 & P/2, however. Expert evidence is opinion evidence and is of advisory character, it is relevant as well but it is not conclusive as Hand writing of a person can be proved by other means also.

13. In instant matter this Court exercised due care and caution at the time of determining the genuineness of alleged signatures of applicant/defendant on disputed documents and found the signatures of the applicant/defendant on two documents i.e. Sale Agreement (Ex-P/1) and receipt (Ex-P/2) are not genuine which makes the said documents as fake and fabricated. Since the suit of the respondent/plaintiff has been filed on the bases of fake and fabricated documents and decided in his favour considering the same as genuine documents, hence this Court under Section 115, C.P.C. can interfere in concurrent finding of facts of two Courts below which is based on insufficient evidence, non-reading or misreading of evidence, non-consideration of material evidence, erroneous assumption of facts patent, errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and unreasonable view had been taken which is not in consonance with the evidence of the parties and Expert.

14. The impugned judgments and Decrees of both the Courts below dated 21.07.2017, 31.07.2006 and 01.08.2006 respectively are hereby set aside under observation mentioned above and inconsequence the Suit of the respondent/plaintiff bearing No. 41 of 2003 is hereby dismissed on merits. There shall be no order as to cost. ZH/A-46/Sindh Revision dismissed.