1989 PLP 1960 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought, against the dismissal by the High Court, of petitioner's Regular Second Appeal; which had arisen out of the dismissal of his suit for specific performance. He had also failed in first appeal before the D1strict Court. The petitioner's claim was that the respondent had agreed through a properly executed agreement as also a receipt for payment of certain sum to sell the suit property to him. The respondent's reply in the written statement initially was that the agreement was fake and the documents were forged, therefore, the suit was liable to be dismissed. In the better statement the respondent had tried to explain that the disputed thumb‑impressions were not his. However, as stated by the learned counsel, subsequently during the trial a finger‑print expert opined that the disputed thumb‑impressions were of the respondent. Accordingly, as further stated by the learned counsel for the petitioner, the respondent changed his version and came out with the explanation that the thumb‑impressions could have been obtained by the petitioner during other litigation between the parties in which there was talk about compromise and several documents were got thumb marked from him fraudulently. In this behalf learned counsel also read the statement of the respondent recorded by the trial Court as DW‑

1. With this background, learned counsel contended that the concurrent findings of fact by the learned Courts below against the petitioner are liable to be set aside for the reasons; that the respondent took incons1stent pleas at different stages of the trial of the suit; that he not having clearly denied the disputed thumb‑impressions onus had shifted on him to prove that he was victim of fraud and/or forgery; that the respondent had not taken such plea in his pleadings which ultimately prevailed with the Courts and similar other points relating to appreciation of evidence. The learned Judge in the High Court while dealing with the question of incons1stency, onus and defect in the pleadings made the following observations:‑ "

10. The learned counsel for the appellant has contended that in view of the report of the Finger Print Expert that the agreement Ex. P. 1 and the receipt Ex. P. 2 bore the thumb‑impressions of the respondent, the onus lay on him to prove that these documents were fraudulent. In support of this contention, reliance is placed on Mst. Nur Nishan and others v. Fazal Dad (P L D 1949 Lah. 256) wherein it was observed that where a party admitted his thumb‑impression on a document it was for him to enlighten about the circumstances under which he put his thumb -impression. As mentioned above, the respondent explained in his statement that during the trial of the criminal case filed by him against the appellant they entered into a compromise and the respondent obtained his thumb‑impressions on various papers. This explanation is not devoid of plausibility. "

11. The learned counsel for the appellant has further argued that since the respondent did not specifically state particulars of the alleged fraud in his written statement as required by Order 6 rule 4, C.P.C. his plea of fraud cannot be taken into consideration. He has referred, in this connection, to Faqir Muhammad and 5 others v. Sheikh Nasim Ahmed P L D 1979 Lah. 356, Ghulam Shabbir v. Mst. Noor Begum and others P L D 1977 S C 75, Muhammad Umar v. Muqarrab Khan and another 1968 S C M R 983 and Muhammad Azeem v. The Pak1stan Employees Cooperative Housing Society and others P L D 1973 Note

84. The respondent clearly averred in his written statement that the agreement and the receipt referred to by the appellant were fraudulent and fictitious. He furnished explanation, although briefly, in his statement before the issues. In these circumstances, his plea of fraud cannot be excluded from consideration, especially when, as usually observed, no meticulous care is taken while drafting pleadings in mufassil." After hearing the learned counsel for the petitioner we have not been able to find any error of law or principle in so far as the appraisal of evidence and other material by the learned Courts below, is concerned. The comments in the impugned judgment on the technical objections raised by the learned counsel do not suffer from any substantial infirmity, legal or otherwise. There is no force in this petition. Leave to appeal, therefore, is refused. A.A./N‑185/S Leave refused.