1999 PLP 2159 (YLR)

A suit for declaration filed by respondents Nos.1 to 4/plaintiffs against the petitioner/defendant and others was pending since. January, 1992 in the Civil Court. During the pendency of the suit, a petition was moved that the respondents/plaintiffs had not validly instituted the suit as they never put their thumb impressions on the plaint and that the same may be got compared from the Handwriting Expert. The petition was, however, resisted on the ground that the thumb‑impressions were affixed by the plaintiffs on the plaint but the petition for their comparison was moved in order to prolong the proceedings by introducing the delaying tactics. That petition was dismissed by the trial Court on 3‑10‑1995. A revision petition was filed against the aforesaid order which was also dismissed by the learned Additional District Judge, Gujranwala vide his order dated 7‑12 1996. The trial, thereafter, proceeded and the parties were called upon to lead evidence on the issues. The plaintiffs/respondents completed their evidence and the case was fixed for evidence of the petitioner/defendant. Then he moved another application for the comparison of the thumb‑impressions of the respondents/plaintiffs after obtaining their thumb‑impressions in the Court and sending it to the Finger Expert Bureau for comparison with their thumb‑impressions appearing under the report of a Patwari on the daily diary dated 14‑7‑1990 at serial No. 1093 acid also the thumb‑impressions appearing on mutation No. 275, dated 22‑7‑1990 which was sanctioned after the same was allegedly acknowledged and accepted by the plaintiffs/respondents. The application was opposed on the ground that the case was pending since 1992 but no step was taken by the petitioner/defendant earlier regarding the comparison of the thumb‑impressions. In this regard, it was further submitted that earlier also, the comparison of the thumb -impressions was sought, as pointed out above, on the ground that the plaint was not properly instituted but that application was disallowed upto the appellate Court. It was also alleged that if the petitioner/defendant was sanguine about the comparison of the thumb‑impressions, he could have moved the Court at appropriate stage or at least at the time when he had moved the earlier application. Lastly, it was contended in the reply to the application that the sole object of the petitioner/defendant was to humiliate the other party i.e. respondents/plaintiffs who are 'Parda' observing ladies from rural area and that they never allegedly put their thumb impressions on any daily diary or the mutation and that the same were allegedly forged. A prayer was, therefore, made that the petition being misconceived and moved with the purpose of delaying the proceedings in the suit and to avoid evidence by the petitioner/defendant, the same be dismissed with special costs.

2. The learned trial Court vide its order dated 7‑3‑1998 did not consider it necessary to allow the petition on the ground that the thumb‑impressions allegedly appearing on the disputed daily diary and mutation were never affixed by the plaintiffs/respondents but were manoeuvered in order to create some evidence. Apart from that, it was observed that previously a similar application for the comparison of the thumb‑impressions on the plaint was rejected and the rejection order was upheld up to the appellate Court against which no further proceedings were taken.

3. I have heard the learned counsel for the petitioner in detail in this Constitutional petition. It is an admitted fact that the case has not yet been finally decided and the discretion vested with the Courts below either to allow or disallow the comparison of the thumb‑impressions on the disputed documents with the sample impressions obtained in the Court. That jurisdiction was exercised by advancing the reasons inter alia that the suit was pending for the last many years but no action was taken for the comparison till the suit was fixed for evidence of the defendant/petitioner. In this regard, learned counsel for the petitioner contended that it was the proper stage for moving the application as the case was at the stage of defendant's evidence and the institution of application earlier would have been pre mature. It was, however, admitted that the expert evidence was never relied upon in the list of evidence but according to the learned counsel the reliance was not necessary because the witness could be produced after he had submitted his report to the Court at the expense of the petitioner/defendant. It was, therefore, contended by the learned counsel that the Courts below exercised their discretion arbitrarily which resultantly damaged the rights of the petitioner/defendant to lead expert evidence at the trial. Lastly, it was contended that the comparison of the thumb‑impressions was necessary for the complete and proper adjudication of the case in hand. In this regard, it was alleged that if it is proved that the plaintiffs had put their thumb‑impressions on the disputed daily diary and the mutation, then it would become clear that they were wrong and that the transaction in dispute was right.

4. I have taken into consideration the aforesaid submissions advanced by the learned counsel for the petitioner. The onus of the issues proving the transaction to be bona fide against the lady plaintiffs who claimed to be ' Pardanashin' ladies is heavily on the petitioner/defendant. If he was of the view that those thumb‑impressions were actually affixed by the respondents/plaintiffs then he should have moved the application much earlier instead of waiting for the stage of his evidence. Even otherwise, he was not put any witness so far in the witness‑box to put his own case by calling the Patwari and the Revenue Officials but had relied upon the daily diary and the sanctioned mutation respectively. Had it been shown that the thumb‑impressions affixed thereon belonged to the plaintiffs/respondents when the question for the comparison would have arisen. At this stage when the impressions have already been denied from the very beginning, the petitioner/defendant cannot be allowed premium over his adversary which would tentamount to the creation of evidence instead of examining the evidence relied upon in the list of reliance. It may also be relevant to point out that abortive effort was made by levelling the allegation that the plaint did not bear the thumb‑impressions of the plaintiffs/respondents and that their sample thumb‑impressions be obtained and sent to the Expert for examination and opinion. However, the application to that effect was dismissed and the revision also failed against that dismissal. In such a situation, a party cannot be allowed to come up with piecemeal objections at every stage of the case which is yet pending in the Court of a competent jurisdiction, awaiting final decision in accordance with law. The Constitutional jurisdiction in such matters cannot be availed till the case is finally decided. Needless to say that all the interim orders, if passed to the prejudice of any patty, would also merge in the final judgment and could be assailed in accordance with law at appropriate stage in a competent forum. Even otherwise, the writ jurisdiction would not be available to challenge fragmentary decisions. As such, the writ petition being devoid of merits is dismissed in limine. Q. M. H. /M. A. K./A‑681 /L Petition dismissed.