P L 'D 1999 Karachi 257 (PLP)

NAZIM HUSSAIN SIDDIQUI, J:

The petitioner has impugned the orders dated 24-9-1998 and 15-10-1998 of learned XIIth Civil Judge, Karachi, East and Ist Additional District Judge, Karachi, East, respectively. The facts relevant for decision of this petition are as follows:

2. The dispute is about premises bearing No.627/1-C, Commercial Area, Block 2 PECHS, Karachi, East. Respondent No.3 Syed Laiq Hussain had filed the Suit No. 100 of 1998 before said Civil Judge, for permanent injunction. 'alongwith the suit, an application under Order 39, 'Rules 1 and 2 was also filed and an order of status quo was passed thereon. It is alleged that the petitioner, in spite of status quo order, had forcibly dispossessed. the respondent No.3 from said premises. Thereafter, the respondent started contempt proceedings. Learned Civil Judge recorded the evidence adduced by the parties.

3. The case of the petitioner, in brief, is that he had purchased said premises from respondents Nos. 1 .and 2 namely, Kokab Noorani Okarvi and Hamid Rabbani. It is alleged that he had paid compensation to all the tenants and they voluntarily vacated their respective tenements and handed over possession to the petitioner, including the respondent No.3. Also, it is alleged that the respondent No.3 had received. an amount of Rs.2,00,000 as compensation and thereafter handed over its (godown/shop) vacant possession to the petitioner. The petitioner has claimed that said respondent had executed a surrender deed dated 20-1-1998 in favour of the petitioner is presence of the witnesses, who had attested said documents.

4. In the impugned order dated 24-9-1998, learned Civil Judge held that sufficient evidence was available on record for determining, the genuineness and validity of said surrender deed, as such, it was not necessary to refer it to Handwriting Expert. Above order was challenged before learned 1st Additional District Judge, who upheld it by order dated 15-10-1998. Both these orders have been impugned in this petition.

5. Mr. Mumtaz Ahmed Shaikh, learned counsel for the petitioner contends that both the impugned orders are contrary to law and are not sustainable. It is also urged that the petitioner had filed an application under Article 84 of Qanun e-Shahadat and because of said application and the circumstances of the case, the surrender deed should have been referred to Handwriting Expert for his opinion.

6. During the course of arguments, we asked learned counsel for the petitioner that since learned Additional District Judge had passed order dated 15-10-1992 by exercising Revisional Jurisdiction under Section 115, C.P:C., as to how this petition was maintainable. In reply, he cited (1) Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and (2) Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC 65.

7. Ratio of above two cases is that merely on the ground of illegality, the petition could not be filed, but if the impugned order was wholly void or coram non judice the same could be challenged through petition.

8. Adverting back to the facts of the case, it is noted that the petitioner had -` filed an application under Article 84 of Qanun-e-Shahadat, which speaks about comparison of signature, writing, or seal with one which is to be proved. This article is not for seeking opinion of Handwriting Expert. It is the requirement of this Article that the disputed writing must purport to have been written by the person to whom it is attributed.

9. It is significant to note that learned counsel for petitioner has admitted that said original surrender deed was neither produced before learned Civil Judge nor before Additional District Judge nor before this Court. Even in the application, filed under Article 84 of Qanun-e-Shahadat, it was prayed that matter be referred to Handwriting Expert "with the photo copy of surrender deed" for verification of the signatures of the respondent No.3. It is not the case of the petitioner that original alleged surrender deed was not available with him. There was no justification whatsoever to withhold it. The comparison of signatures is done with original document and not with its photo copy

10. Learned Civil Judge in his impugned order held that sufficient evidence was available via record to examine the genuineness of said surrender deed. When tine Court has to form an opinion that whether a document was written/signed by a particular person, it can including the opinion of Handwriting Expert, also apply any of the following modes for said purpose-- "(1) by calling as a witness a person, who wrote the document; (2) saw it written or signed; or (3) who is qualified to express an opinion as to the handwriting by virtue of Article 61. (4) by comparison of the handwriting as provided under Article 84; (5) by admission of the person against whom the document is tendered; (6) by internal evidence afforded by the contents of the document." Thus it would be seen that more than one option was available for proving handwriting/signature, it learned Civil Judge preferred to other modes, :being the opinion of Handwriting Expert, this fact by itself is not enough to hold that the course adopted by hurt to ascertain the genuineness of the document was improper.

11. Looking to the circumstances of the case, it is evident that impugned orders are neither illegal nor void. hi cite case reported as Sheikh Gulzar Ali & Co. Ltd. and others v. Special Judge, Special Court of Banking and another 1991 SCMR 590, it was held by Supreme Court that mere erroneous exercise of jurisdiction does not render the order passed by a Civil Court of competent jurisdiction to be illegal and without law authority as to amenable to be questioned in the Constitutional jurisdiction of the High Court under Article 199 of the Constitution. It is noted that both the aforesaid orders were passed by Civil Court of competent jurisdiction. as such, they could not be termed as "VOID ORDERS". On the contrary. these orders are legal. Under the circumstances, the petition is not maintainable

12. On 3-3-1999, after hearing learned counsel for the parties, we had dismissed the petition in limine and these are reasons for the same. , Q.M.H./M.A.K./M-416/K Petition dismissed.