2005 PLP 941 (CLD)

4. Learned counsel for the appellants contends that the issues raised by them were serious and bona fide disputes, which were substantial in terms of law and the facts of the case, and such pleas could not have been decided, without the recording of the evidence, therefore, in such a situation, the leave should have been granted to the appellants. It is also stated that on account of the denial about the execution of the documents by the appellants and their signatures/thumb impressions on the guarantees and the mortgage instruments, and the specific allegation that those were forged and fabricated by itself are the serious and bona fide disputes and the substantial questions of fact, having legal consequences, which could not be resolved, otherwise than through a proper trial. It is further submitted that the appellants had moved an application, for the examination of the thumb impression/signature by an expert, which has not been decided by the learned Judge. Rather the Court itself examined the documents to opine against the appellants on the basis of its visual inspection, which opinion can never be accurate, as the learned Judge, has no skill or the expertise in the matter and this has caused serious prejudice to the case of the appellants. In support of his plea, the learned counsel has drawn support from the following judgments:‑‑ Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Ch. Riayasat Ali v. Mst. Hakim Bibi etc. 2000 YLR 2789; Noor Ahmed v. Meraj Bibi 1994 CLC 479; Dr. Major Abdul Ahad Khan v. Muhammad Iqbal PLD 1989 Karachi 102; Muhammad Kabiruddin v. Muhammad Muniruddin 1993 CLC 747; Muhammad Anwar v. Hafizuddin 1984 CLC 2871; Muhammad Ali Hemani v. Mst. Altaf Fatima 1987 CLC 282; Abdul Razzak v. Mst. Fatima Bai 1981 CLC 1083; Sarojini Dassi v. Hari Das Ghose AIR 1922 Cal. 12; Vadrevu Annapurnamma v. Vardrevu Bhima Sankararao AIR 1960 AP 359; and Nadir Ali etc, v. Muhammad Adam Khan 1985 CLC 373.

5. It is also argued by Mr. Salman Butt, learned counsel for the appellants, that the amendment in the original suit, subsequent to the permission granted by this Court vide order dated 19‑3‑1998, was unauthorized and in excess of the permission, granted and was thus in direct violation of the settled law that no one shall be allowed to cause any change in his pleadings except, with the specific permission of the Court and that too, only to the extent, it is allowed. It is also submitted that the Banking Court presided over by a learned Judge of this Court, had no pecuniary jurisdiction to decide the matter. But for the reasons that the subject‑matter of the claim was enhanced by the Bank unauthorizedly, and it is only on account of he above, that the Court exercised its jurisdiction over the matter, which otherwise, the Court lacked. Resultantly, all the proceedings and the final judgment and the decree passed by the Court, are also without jurisdiction and lawful authority and are liable to be set aside. Reliance has been placed upon the judgments reported as Nazir Cotton Mills Limited v. Islamic Investment Bank Limited 2002 PLD 612; Matwarli Khan v. Shah Zaman PLD 1965 AJ & K 26; Abdul Hamid v. H.M. Qureshi PLD 1957 SC 145 and Mistri Muhammad Hassan v. Haji Said Muhammad 1986 CLC 1241. Learned counsel has further argued that without prejudice to the submission that the alleged mortgages are not binding upon the appellants, since‑their signatures/ thumb‑impressions on the same, are forged, etc. the alleged mortgages could not have been created, as being contrary to the law. In this respect, it was pointed out that section 58(f) of the Transfer of Property Act, is not applicable to the Province of Punjab, therefore, the mere entries in the record of rights were not sufficient to create a valid equitable mortgage; as was done in this case. Reliance in this behalf, has been placed upon the judgments reported as Muhammad Hussain v. Secretary of estate and others AIR 1939 Lahore 330; Teja Singh v. Firm Kalyan Das Chet Ram and others 1925 Lahore 575 and Messrs Ram Gopal Jiwan Singh v. Sardar Gurbux Single Jiwan Singh and others AIR 1955 Punjab 215.

6. Replying to the above, the learned counsel for the respondent‑Bank has argued that the decree has been rightly passed by the learned Banking Court, presided over by the Honourable Judge of this Court, by rejecting the leave application of the appellants, because no serious and bona fide dispute and substantial questions of fact and law, were raised by the appellants, which required recording of the evidence. It is submitted that the bank could always enhance the claim of interest, so as to confer jurisdiction upon the Special Banking Court presided over by the Honourable Judge of this Court; reliance has been placed upon the case reported as National Bank of Pakistan v. Mrs. Abida Mustajab Hasan, etc. 1985 CLC 1074. As regards the examination of the documents by an expert is concerned, it is submitted that the expert's evidence is the most weakest in nature and therefore, it must yield to positive evidence. Reliance is placed upon the cases reported as Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359; Ghulam Siddique v. Mst. Ajhaib etc. 2002 CLC 1244 and Syed Ali Nawaz Shah Gardezi v. Lt. Col. Muhammad Yusuf Khan PLD 1962 Lahore

558. It is further submitted that it was not essential for the Court, to have sent the documents for the examination and the opinion of an expert, rather the Court could have done the same under the provisions of Article 59 of the Qanun‑e‑Shahadat Order, 1984. Support is drawn from the judgments reported as Muslim Commercial Bank Ltd. v. Amir Hussain and another 1996 SCMR 464; S.M. Zahir v. Pirzada Syed Fazal Ali Ajmeri 1974 SCMR 490 and Ali Ahmed alias Ali Ahmed Mia v. The State PLD 1962 SC

102. As regards the entry of creation, of a equitable mortgage in the Revenue Record, is concerned, it is submitted that this was permissible under the law; besides, that the principles of Transfer of Property Act, are applicable.

7. Heard. Admittedly, the appellants/ defendants are/were old ladies; they are not the principal borrowers of the suit amount, but are alleged to be the guarantors and the mortgagors of the financing, allowed to a private limited company (respondent No.2) of which, they are neither the share‑holders nor the Directors; they have specifically asserted that a fraud has been committed upon them and that the documents about the mortgages/guarantees, etc. are forged, which do not bear their signatures or the thumb impression. And therefore, they also requested the Court to seek the opinion of the hand writing/finger print expert, etc. This application, we are told, has not been disposed off, rather the learned Judge undertook the tasks of the comparison himself and held as below:‑‑ "I have seriously considered the submission made by the counsel for applicant defendants and have also made comparison of the signatures of Mst. Riffat Jahan and Mst. Sarwat Jahan on the deeds of mortgage and personal guarantees with those on the Power of Attorney in favour of Mr. Khalid Saleem, Advocate. Visual comparison of these signatures reveal, that signatures by Mst. Riffat Jahan and Mst. Sarwat Jahan (Sarwat Hussain), on the documents of mortgage and guarantees have been made with natural flow and in a natural and routine manner by the said persons. The emphasis and pressure of the signing instrument also appear to be normal. Intriguingly, signatures of the said persons on power of attorney in favour of Mr. Khalid Saleem, Advocate appear to have made with a lot of effort at distortion to make them look different from those on the above said deeds. Despite this effort, traces of clear similarity are evident." It is admitted position that the learned Judge, has not made the comparison in the presence of learned counsel for the parties and they were not associated with the task of assisting the Court in this behalf. This omission of the Court, is contrary to the law laid down in the dictum reported as Dr. Major Abdul Ahad Khan through his legal representatives v. Muhammad Iqbal, through his legal representative PLD 1989 Karachi 102.

8. There is no cavil with the proposition that under Article 84 of the Qanun‑e‑Shahadat order, 1984, the Court is entitled to make an independent comparison of the hand writing, apart from the opinion of an expert and in every case, it is not necessary that the matter should be referred to an expert. There is also no denying the legal position that the evidence of a hand writing expert is a weak and decrepit and therefore, must yield to the positive evidence. However, yet under the provisions of Article 59 of the Order ibid, enables the opinion of the persons, who have the necessary study, skill and the expertise in a specific field of knowledge, and their, views are relevant to resolve the proposition of science, art, hand writing, finger impressions, etc. Obviously, the Article is incorporated in the Order, 1984, with a definite object to facilitate the job of the Court, while analyzing and evaluating the question relating to a specialized study/area, which includes the hand writing issues.

9. Though the opinion of the expert is not binding upon the Court, yet it shall be helpful for the Courts in understanding the niceties and the implications of, the subject, so that, in the light of such supporting material, as may be provided by an expert, in the shape references, charts, graphs and the enlargements, with the specific identification about the similarities and dissimilarities of the writing, that enables the Court to form a fair view as far as possible. However, if the Court is not pleased to seek the opinion of an expert, then it should express and the decision must reflect, the adequate skill, expertise, competence and knowledge of the Court in the field, on the basis of which, the comparison has been made and the conclusion drawn is rested. Because in the modern times, the forging of the handwriting has become a sophisticated art and at times, the forgery is so accurately done that a person may be deceived and become doubtful of his own writing. Therefore, it shall be highly unsafe, rather may lead to miscarriage of justice, if the Court without the competence and adequate skill, renders its decision on the basis of visual comparison alone, without there being even the assistance of the counsel for the parties. Therefore, we are unable to sustain the decision of the learned Judge about the signatures of the appellants.

10. Leaving apart the issue of the hand writing, the study relating to the finger prints has acquired nearly the status of an exact science. Number of countries of the world, including the United States of America, are regulating their immigration system on the basis of the prints. And by now, it is authentically opined by the experts on the subject that no two human beings have the same finger prints. Thus by using this special knowledge; it can safely be ascertained, whether the finger print of a person on a document, pertains to him, or otherwise, we are constrained to hold that the expertise of examining the finger prints is ordinarily not a skill of a Judge and therefore, necessarily the opinion of the expert, should be resorted to. But unfortunately the learned Court, has absolutely ignored the request of the appellants, to seek the opinion of the expert, vis‑a‑vis their thumb‑impression upon the disputed documents. We find that the omission on part of the learned Judge has resulted into injustice to the case of the appellants, who, at the leave granting stage, have been beseeching the Court in this behalf. But only on account of the assumption about the similarity of the signatures on the mortgage/ guarantee documents, by comparing those with the power of attorney in favour of Khalid Saleem, Advocate, the entire case has been decided and the ‑plea of the appellant has been repelled. In our view, the attending circumstances of the case, which have been highlighted in paragraph No.7, the appellants should have been given some opportunity to establish that a fraud has been committed with them. For the reason, that the appellants were identified by one Sardar Muhammad Naseem, J.C, D.C. Office, Lahore, at the time of the registration of the mortgage deeds, and that his affidavit has not been produced and procured by the appellants, no presumption in law in the nature of negative proof could have been raised against them. In fact, if the matter was tested at the trial, it obviously shall first be the duty of the respondent‑Bank to prove the documents in any of the modes permissible under the law.

11. The question, whether this Court on account of unauthorized amendment by the respondent‑Bank, in the plaint, lacked the jurisdiction, again is a serious and substantial question of fact, which has far reaching and serious implication i.e. about the very power of the Court to adjudicate the matter and pass the impugned decree. This question as per the settled law can be raised at any stage of the proceedings, because the consent of the parties can neither confer nor oust the jurisdiction. But there being no cavil that any decree passed without jurisdiction is nullity in the eyes of law. This aspect of the matter, has not been dealt with by the learned Judge, when an objection in this behalf, has been categorically taken in the leave application, which was filed by the appellants, after the promulgation of the Financial Institutions (Recovery of Finances) Ordinance, 2001. In the above circumstances, we find that there were the questions involved in the matter, which were substantial questions of law and facts, falling within the domain of serious and bona fide dispute as well, resultantly, the learned Court, should have proceeded with the matter and adjudicated the case, only after having granted the leave to the appellants. In the light of above, the judgment and decree of the learned Banking Court, to the extent of the appellants is set aside, the appellants are granted leave to appear and defend the suit. Appeal is accordingly allowed. M.B.A./R‑135/L Order accordingly.