1984 PLP 3151 (CLC)

(a) Civil Procedure Code (V of 1908)‑ ‑‑S.100 ‑ Second appeal‑Finding of fact‑Lower appellate Court after considering all aspects of question and giving sound reasons coming to conclusion that signatures on plaint as well as on Vakalatnama were that of plaintiff himself‑Finding of lower appellate Court being one of fact, held, could not be challenged in second appeal.‑[Finding of fact). ‑-‑O. XVIII, r. 16 and S. 100‑ Statement under O. XVIII, r. 16, recording of‑Institution of suit‑Plaintiff leaving for abroad and defendant filing written statement thereafter‑Before filing of written statement by defendant plaintiff he did not know that genuineness of his signatures on plaint would be challenged‑Plaintiff, held had no reason to have applied for his statement to be recorded under O. XVIII, r. 16 in circumstances. ‑‑S. 146‑Credibility of witness‑Finding of lower appellate Court- Conclusive and binding.‑[Witness]. ‑‑S. 45‑Handwriting, proof of‑Expert's opinion‑Not best or only mode of proving a document.‑[Evidence]. Syed Shabbir Hussain v. The State 1968 S C M R 1126 and Abdul Majeed v. The State P L D 1976 Kar. 762 rel. This is an appeal from a judgment and decree, dated 19th March, 1979 of Ch. Muhammad Islam, District Judge, Jhelum, reversing a judgment and decree, dated Ilth February, 1973, of Ch. Faiz Talib Khan, Civil Judge, Jhelum, whereby the respondent's suit for pre‑eruption was dismissed.

2. Briefly, the facts of the case are that the appellant had purchased agricultural land measuring 7 Kanals, 2 Marlas in village Bhirita, Tehsil Jhelum, the details of which are mentioned in the plaint, through a registered sale‑deed, dated 31st May, 1971, ostensibly for Rs.14,

000. As many as nine issues were framed. All issues, except issue No. 7, were so decided by the trial Court, that the suit would have been decreed in favour of the respondent on payment of Rs.14,000 issue No. 7 was decided against the respondent, and as a consequence the suit was dismiss ed. Issue No. 7 is as follows "

7. Whether the plaintiff has not signed the plaint himself, if so with what effect ? O. P. D. The finding of the trial Court was that Muhammad Younis plaintiff bad not signed the plaint and he had also not signed the power of attorney which his counsel had filed in Court, nor had he executed the special power of attorney, on the basis of which his father Imam Din prosecuted the case on his behalf.

3. The appellant's case is that at the time of institution of the suit the respondent had gone abroad, and that his signatures on the plaint etc. had been forged by his father Imam Din. The appellant produced Mr. Hafizullah Butt handwriting expert as D. W.‑10, who examined the respondent's signatures on the plaint, the special power of attorney, and the‑vakalatnama. According to the opinion of the handwriting expert, the signatures on the vakalatnama and the plaint tallied with each other, but these did not tally with those on the special power of attorney. It may be mentioned that in the written statement the signatures of the respondent on only two documents, namely the plaint and the vakalatnama were challenged as being forged. The special power of attorney (Exh. P. 7) was proved by Muhammad Sabir (P. W.‑3) a clerk of some Advocate. The signature on the plaint (Exh. P. W.‑5/1) and those on the vakalatnama (Exh. P. W.5/2) were proved by Muhammad Hayat (P. W. 5) who is a clerk of the respondent's Advocate.

4. Learned Civil Judge expressed in his judgment that the plaintiff himself had not appeared as a witness to prove his signatures on the documents, nor had the plaintiff's counsel appeared to prove the signatures of the plaintiff on the plaint and the vakalatnatna, and therefore the rule of best evidence was violated. He also expressed that the handwriting expert had supported the defendants' version. However, it is pertinent to note that in view of the endorsements made in the respondent's passport, which was produced in evidence, the Court held that the appellant's contention, that the respondent was out of the country at the time of institution of the suit, was incorrect.

5. Learned District Judge on the other hand expressed that the docu ments stood proved by the oral testimony of P. W. 5 and P. W. 3 and that nothing was brought out in the cross‑examination of those witnesses to suggest that they were not impartial. He also observed that the respondent's signatures on the special power of attorney had not been challenged in the written statement as being forged. Passport Exh. P. W. 10Ji showed that the respondent had entered Pakistan on 16th January, 1972, and had left Pakistan on 16th July, 1972. The suit having been filed on 31st May, 1972, the Court held that there was no occasion for the signatures of the respondent being forged, when he was present in Pakistan at the time of institution. In view of the respondent's evidence, the Court disbelieved the evidence of the handwriting expert. Issue No. 7 was decided is favour of the respondent, and after accepting his appeal his suit for pre‑emption was decreed.

6. Learned counsel for the appellant argues that in view of the evidence on record, and in view of the fact that the respondent had failed to have his statement recorded under Order XVIII, rule 16, C. P. C, it should have been held that the plaint as well as the vakalatnama had not been signed by the respondent.

7. There is no merit in this contention because the finding of the lower appellate Court that the documents had been signed by the plaintiff himself is one of fact and it cannot be challenged in second appeal. Learned District Judge has considered all aspects of the question and has given sound reasons for his conclusion. The written statement in this case was filed on 5th February, 1973 when the respondent had already left the country. Before the written statement was filed it could not have occurred to the respondent that the genuineness of his signatures on the plaint etc. would be challenged. There was, therefore no reason for him to have applied for his statement being recorded under Order XVIII, rule 16, C. P. C.

8. It is next contended on behalf of the appellant that where it is question of credibility of witnesses the finding of the trial Court is final. In the present case however, an inference of fact had to be drawn front other facts and it was not merely a case of determining credibility of witnesses. The finding of the lower appellate Court is therefore, conclusive and binding.

9. It is also urged on behalf of the appellant that unless the hand writing expert was contradicted by another expert, his opinion could not be ignored. This contention too has no force, as it has been held in Syed Shabbir‑Hussain v. The State (1968 S C M R 1126) that producing a handwriting expert is not the best or the only mode of proving a document. It has also been observed in Abdul Majeed v. The State (P L D 1976 Kar. 762) to the effect that a handwriting' expert's evidence is not conclusive. 1t was on the basis of the totality of evidence that the lower appellate Court had to decide the issue, and it has done so.

10. It is also contended on behalf of the appellant that the effect of failure of the respondent to have appeared as a witness has not been properly appreciated by the lower appellate Court. There is no substance in this contention. The respondent was out of the country at the time when the written statement was filed. To prove the merits of his case, and the superiority of his right of pre‑emption, it was not necessary for him to appear as a witness. It is not the case of the appellant that issues on merits have not been proved to the hilt. As already observed it could not have occurred to the plaintiff that his signatures on the plaint etc. would be challenged in the written statement, which was filed after his departure from the country. Since he was not available in Pakistan at the time of evidence, the appellant cannot make capital out of the respondent's failure to appear as a witness.

11. Learned counsel for the respondent submits that the documents had indeed been signed by the plaintiff but in any case nothing turns on the appellant's objection, because even if the plaint had remained unsigned, it could be signed at a subsequent stage. The failure to sign plaint is a curable irregularity.

12. It is also submitted that the plaintiff's signatures on the special power of attorney having never been denied in the written statement, the attorney could be allowed to sign the plaint at any time even at the appellate stage.

13. However, since I have already held that the finding of the lower appellate Court, that the plaint as well as the vakalatnama bear the respondent's signatures, is conclusive, it is not necessary to go into the alternative plea of allowing the respondent's. attorney to sign the plaint. There is no merit in this appeal, and it is, therefore, dismissed. There shall, however, be no order as to costs. M.Y.H. Appeal dismissed.