1993 PLP 1779 (CLC)

"Evidence Act recognises two direct methods of proving the hand writing of a person: (i) By an admission of the person who wrote it. (ii) By the evidence of some witness who saw it written., These are best methods of proof. These apart, there are three other methods of proof of opinion. They are: (a) By the evidence of a handwriting expert (section 45). (b) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question (section 47). (c) Opinion formed by Court on comparison made by itself (section 73). "All these three cognate modes of proof involve a proof of comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned documents. The first paragraph of section 73 provides for comparison of signature, writing or seal purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not say by whom such comparison may be made. It is clear that such comparison may be made by a handwriting expert (section 45) or by one familiar with the handwriting of the person concerned (section 47) or by the Court. A sample writing taken by the Court under the second paragraph of section 73 is in substance and reality, the same thing as admitted writing within the purview of the first paragraph of the section. Section 73 is, therefore, to be read as a whole in the light of section

45. Thus it is clear that a Court trying a suit or Controller trying an eviction application or holding an inquiry under Order XXI, rule 100 or section 12(2), C.P.C. does not exceed its powers under section 73, if in the interests of justice, it directs the defendant/respondent person appearing before it, to give his sample writing to enable the same to be compared by a handwriting expert chosen or approved by the Court/Controller, because even in adopting this course, the purpose is to enable the Court/Controller before which he is ultimately put up for trial, to compare the disputed writing with his (defendant/respondent's) admitted writing, and to reach its own conclusion with the assistance of the expert. In the instant case, the Senior Civil Judge/Rent Controller, did not apply this test to the present case. The Senior Civil Judge did not direct the respondent to execute sample writing. The respondent in his objections stated that Annexures `C' and `D' are forged, fictitious and bogus but no attempt was made by him for sending the disputed documents and admitted documents to the handwriting expert. It is not apparent from the record that the admitted signature, writing was before the Senior Civil Judge except the signature of the respondent on this record. I am of the view that section 73 does not entitle the Court to assist a party to the proceedings. It entitles the Court to assist itself to a proper conclusion in the interest of justice." In Mst. Ummatul Waheed v. Ms. Nasira Kausar (1985 SCMR 214) the contention before the Supreme Court was that comparison of the signatures by the Court itself as a substitute for the opinion of the handwriting expert had not been approved by the superior Courts. The plea was, however, repelled by the following observations:‑‑ "On the legal plane we find that the latest decision of this Court is contained in Ali Ahmad alias Ali Ahmed Mia v. The State PLD 1962 SC 102 that a Court is entitled to compare the handwriting even if there be an opinion of an expert on the subject. In S. M. Zahir v. Fa7al Ali Ajmeri 1974 SCMR 490 it was held that there is no rule of law which requires examination by an expert in every case. The Court itself was held entitled to compare the handwriting and to come to the conclusion.

6. It may be pointed out that Article 84 of Oanun‑e‑Shahadat is an enabling provision leaving to the discretion of the Court to satisfy itself as to the proof of the handwriting or the signatures in case any dispute has been raised as to their genuineness. On of the modes for proving such handwriting or signatures is by reference thereof to a handwriting expert for comparison, however, the Court is also empowered to compare the disputed handwriting or the signatures with the admitted signatures and then arrive at its own findings. As has been held by the Supreme Court in the case of Mst. Ummatul Waheed after referring to the case of Ali Ahmad alias Ali Ahmad Mia v. The State (PLD 1962 SC 102), the Court is entitled to compare the handwriting even if there be an opinion of an expert on the subject. Such course, the Court must adopt particularly when no opinion of the expert is available before it. After all, the Court has to do complete justice between the parties. The mere fact that no request has been made to the Court to compare the disputed signature with admitted signature would not justify such failure on the part of the Court to 1 compare the signature itself. No doubt, the circumstances referred to by the learned Controller in his order, which according to him, militated against the plea of the appellant that the cost of repairs was liable to be adjusted against future rent can be considered to arrive at a finding whether the plea taken by the tenant was correct or genuine but in the present case Exhibit A/6 had been tendered in evidence which purportedly contained permission under the signature of the respondent. The question that primarily was to be considered was whether such endorsement was made on the said document by the respondent himself. This clearly required a finding whether the handwriting or signature on Exhibit A/6 was that of the respondent. Consequently, even if no attempt was made by the respondent to refer the disputed handwriting or the signature for opinion of an expert it was incumbent on the Court to itself compare the signatures as pointed out earlier and come to its own findings on the issue. The question whether the alleged cost of repairs was to be adjusted from the rent could be conclusively determined after a finding had been given by the learned Controller regarding the genuineness of the handwriting or the signature on Exhibit A/6.

7. In the result, I allow this appeal and set aside the order passed by the learned Controller and remand the case to him for afresh decision in the light of the observations made in this judgment. The parties arc left to bear their own costs. ` . H.B.T./A‑1335/K. Case remanded.