2018 PLP 20 (CLCN)

YOUSUF ALI SAYEED, J.

This Second Appeal impugns the Judgment dated 22.10.2015 and Decree dated 02.11.2015 passed by the learned IIIrd Additional District Judge, Karachi (Central) (the "Appellate Judgment") in Civil Appeal No. 86 of 2013 (the "First Appeal"), upholding the Judgment and Decree passed on 29.05.2013 by the learned Vth Senior Civil Judge, Karachi (Central) (the "Initial Judgment") in Civil Suit No. 133/2010 (the "Civil Suit").

2. The dispute inter se the parties, relates to Shop Nos. 4 and 5, situated on the ground floor of a building know as Gulberg Square, situated on Sub-Plot No. ST-4/C/A, Block-16, Federal 'B' Area, Karachi (collectively, the "Shops"), which the Respondent professes to have purchased from the Appellant in terms of Sale Agreements dated 15.07.1997 and 31.01.1998 (the "Sale Agreements") for a sale consideration of Rs.300,000/- and Rs.385,000/- respectively, and claims to have been put in possession thereof by the Appellant upon payment of the entire sale consideration in cash against signed receipts.

3. The Civil Suit was filed by the Respondent on 16.02.2010, on the basis of the respective causes of action said to arise from these Sale Agreements, and in terms of the Civil Suit the Respondent alleged having discharged his payment obligations in terms of the Sale Agreements through payments in cash and prayed inter alia for declaration of title and for specific performance as against the Appellant towards execution of sub-lease/sale deeds in respect of the Shops.

4. The Appellant disavowed the Sale Agreements and decried the signatures appearing thereon and on the receipts as forgeries. He denied having received any sums from the Respondent or having delivered possession of the Shops to the Respondent on the basis of any such understanding. As per the Appellant, the Respondent was his tenant and had earlier been put in possession of the Shops in that capacity pursuant to Tenancy Agreements dated 01.06.1996 and 24.01.1998. It was submitted that the Respondent had fabricated the Sale Agreements for fraudulently annexing the Shops, and that he had instituted the Civil Suit seeking specific performance accordingly.

5. From the pleadings of the parties in the Civil Suit, the following issues were framed: (i) Whether suit is not maintainable under the law? (ii) Whether Defendant had executed sale agreement dated 15.7.1997 and 31.1.1998 in favour of the Plaintiff in respect of shops/property against total consideration of Rs.675000/- (iii) Whether Plaintiff has paid total sale consideration to the Defendant? (iv) Whether Plaintiff was originally inducted by Defendant as tenant? (v) Whether Plaintiff is entitled for the relief claimed? (vi) What should be the decree?

6. In terms of the Initial Judgment, the finding in respect of Issues 2, 3 and 5 was returned in the affirmative and in respect of Issues 1 and 4 in the negative, all of which supported the case of the Respondent, which was then upheld in the First Appeal as per the Appellate Judgment.

7. Learned counsel for the Appellant submitted that the Courts below have materially erred in failing to appreciate that (a) that the disputed Sale Agreements were quite evidently dubious as the signatures said to be those of the Appellant were clearly shaky, (b) the disputed Sale Agreements remained unproven as per the requirement of law due to the fact that only one of the attesting witnesses was produced to give evidence, (c) that undue reliance was placed on the report of a handwriting expert without such report being exhibited in evidence and/or the expert being summoned, and (d) that, even otherwise, the Civil Suit, having been filed on 16.02.2010, was not maintainable in as much as the same was clearly barred by limitation as per Article 113 of the Limitation Act 1908, which prescribes three years' period of limitation for a suit for specific performance and the time begins to run from "the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused".

8. He pointed out that the signatures on the Sale Agreements alleged to those of the Appellant visibly differed from the signatures appearing on the Tenancy Agreements, and it was evident that the same had been penned by a shaky hand. He submitted that as factum of signature was denied and the genuineness of the Sale Agreements was central to the Respondent's claim in the Civil Suit and thus formed the crux of the dispute, the onus lay on the Respondent to discharge the burden of proof by establishing that the signatures appearing thereon were those of the Plaintiff, for which purpose the persons who were shown as witnesses to the Sale Agreements were required to be examined on oath and presented for cross-examination, as prescribed by Article 79 of the Qanun-e-Shahadat Order, 1984. He placed reliance on single-bench judgments of this Court in the cases reported as Zafar lqbal v. Sher Muhammad and 3 others 2003 YLR 673 and Maqsood Ali Khan v. M. Tehseen Khan 2003 YLR 1866. He submitted that, nonetheless, only one of the witnesses to the impugned Sale Agreements, namely Muhammad Shahzad, who is the brother-in-law of the Respondent, was called as a witness, whereas the other person shown as a witness, namely Laiq Ahmed, was never examined albeit the Respondent admitting under cross-examination that he was the occupant of the adjacent shop.

9. He further submitted that in ignoring the mandate of Article 79, the learned SCJ placed undue reliance on the report of a handwriting expert, albeit that the report had not been exhibited in evidence and its author had not been called to depose as an expert witness and thus be subject to cross-examination, due to which such report was of no evidentiary value. He placed reliance on the judgments of the Honourable Supreme Court in the cases reported as Allah Dino and 2 others v. Mohammad Umar and 2 others 1974 SCMR 411 and Hazara and others v. Muhammad Yar and others 2011 SCMR

758. He also pointed out that the Appellant had filed objections to the report, contending that the expert had been won over by the Respondent.

10. Without prejudice to his contention that the Sale Agreement remained unproven as per the mandate of law, learned counsel further submitted that the Civil Suit was even otherwise barred by limitation as the same had been filed on 16.02.2010, over 12 to 13 years after the date of the Sale Agreements, which dated back to 1997 and 1998, whereas Article 113 of Limitation Act, 1908, provided 3-years as the period of limitation for filing a suit for specific performance. He further contended that the date of refusal started from the date of first notice dated 02.05.2001, therefore, the Civil Suit was barred, having been filed after delay of about 9 years. He relied upon cases reported as Bomanshaw Burjorji Gazdar v. Mst. Mumtaz Begum and others 1985 SCMR 554, Zafar Iqbal's case (Supra) and Haji Muhammad Yaqoob through Legal Heirs v. Shah Nawaz 1998 CLC 21.

11. With reference to the Initial Judgment as well as the Appellate Judgment, learned counsel contended that the point of limitation had evidently been wrongly decided at both the fora below, and, in this regard, pointed out that the successive legal notices said to have been issued on behalf of the Respondent were erroneously deemed to afford a fresh cause of action and the period of limitation under Article 113 of the Limitation Act was reckoned from the date of the last such notice (i.e. 09.01.2010). He submitted that, even otherwise, no notices had even been received by the Appellant, let alone replied or acknowledged as correct, and the mere factum of issuance of such notices, even if accepted for the sake of argument, could not of itself extend the alleged cause of action for filing of the Civil Suit. He placed reliance on the judgment of the Honourable Supreme Court of Pakistan in the case reported as Messrs Anwar Textile Mills Limited v. Pakistan Telecommunication Company Limited and others 2013 SCMR 1570 to show that the question of limitation remained open within the scope of a Second Appeal.

12. On the other hand, learned counsel for the Respondent submitted that the proceedings in the Civil Suit and the First Appeal were proper in all respects and satisfied the mandate of the law. He submitted that the evidence tendered by one of the witness to the Sale Agreements in support of the Respondent's claim in respect of the Shops coupled with the handwriting expert's report was sufficient to prove the execution and hence the authenticity of the Sale Agreements. He placed reliance on a judgment of the honourable Supreme Court reported as Ghulam Rasool and others v. Akbar Ali and others 2011 SCMR 794, as well as single bench judgments of this Court reported as Muhammad Umer and another v. The State PLD 1968 Karachi 875 and of the erstwhile Dacca High Court reported as Majarullah Mondal and others v. Matiur Rahman and others PLD 1968 Dacca

167. Furthermore, he defended the findings on the point of limitation whilst restating the very rationale applied by the Courts below.

13. I have examined the Initial Judgment and Appellate Judgment and considered the arguments advanced at the bar. The basis of the Respondent's claim in terms of the Civil Suit were the Sale Agreements, the execution of which had been denied by the Appellant. As such, the onus was on the Respondent to prove the same. During the course of proceedings at first instance, the Sale Agreements as well as the Tenancy Agreements placed on record by the Appellant were sent to the handwriting expert along with specimen signatures of the parties. In his report, the handwriting expert opined that the set of signatures on the Sale Agreements as well as the set of signatures on the Tenancy Agreements were similar to the specimen signatures of the Appellant. Both the courts below relied upon the expert's report despite objections raised. In defending this methodology, learned counsel for the Respondent referred to Muhammad Umer's case (supra) and Majarullah Mondal's case (Supra) in an endeavor to show that the comparison of a disputed signature with signature that are admitted is a legal mode of determining the genuineness thereof and that if, after carefully examining the disputed and admitted writings and after scrutinising the evidence of a handwriting expert, the Court is fully convinced that as to genuineness of the writing on a disputed document, there is no bar to the Court proceeding to record a finding on such a basis.

14. Be that as it may, from a reading of the aforementioned Judgments it is apparent that the endorsement of the legality of such an approach was circumscribed with reference to the inherent dangers of basing a decision entirely on such a comparison and from a reading of the said Judgments it appears that whilst such approach may have been considered legally permissible, it was not considered to be desirable as a matter of general practice. The learned single Judge in Majarullah Mondal's case (Supra) specifically noted that "In certain circumstances it is unsatisfactory and dangerous to base a decision on the correct determination of the genuineness of a handwriting or a signature", and in Muhammad Umer's case (Supra), which was a case pertaining to a criminal conviction, it was observed as follows: "I am also of the view, if I may say so respectfully, that this evidence needs very careful examination and should also generally be supported by corroboration to be the basis of conviction in a criminal case, I have seen handwriting experts appearing on opposite sides and giving diametrically opposite opinions with regard to the same writing and supporting it with equal zeal, and force. It is for this reason that their opinion have often been described as that of a partisan or biased witness. But having said this I must add that if after carefully examining the disputed and admitted writings and after scrutinising the evidence of handwriting expert, the Court is fully convinced that the writing of the disputed documents is of the same person who wrote the admitted ones there is no bar in law to base a conviction upon such a finding." As such, it is apparent that whilst the evidence of a handwriting expert has its own evidentiary value, the same cannot be regarded as gospel and the Court is required to apply its mind to the controversy at hand in each case so as to properly examine and carefully consider the expert evidence, along with such corroborative evidence as may be available, so as to be convinced.

15. In the instant case, such caution does not appear to have been exercised, as the Sale Agreement ascribed to the Appellant visibly appears to lack a firm hand and perusal of these signatures in juxtaposition with the set of signatures on the Tenancy Agreements shows a marked and clearly discernible variation between the two sets of documents to an extent that casts an appreciable element of doubt as to the experts finding that both sets correspond with the specimen signatures of the Appellant, as it could logically only have been one or the other.

16. Even otherwise, it merits consideration that whilst the opinion of an expert may be of relevance as per Article 59 of the Qanun-e-Shahadat Order, 1984, that is not to say that a report prepared by an expert would be admissible without examination of the said expert. The Honorable Supreme Court in the Allah Dino's case (Supra) held as under:-- "Mr. A.S. Pirzada, learned counsel for the appellants has submitted that this evidence is of no use because the Expert has not been examined in Court. This objection of the learned counsel appears to be well founded. I would, therefore, not take into consideration the report of the Handwriting Expert." On the basis of and with reference to the aforesaid principle, the apex Court held in Hazara's case (Supra) that the report of an expert as regards a thumb impression was of no help to the party seeking to rely thereon due to the non-appearance of the expert in the witness box.

17. Furthermore, as per the mandate of Article 79 of the Qanun-e-Shahadat Order, 1984, the proper course to have been followed was for both witnesses to the Sale Agreements to have been produced so as to confirm the factum of execution in their presence and thus dispel the contention of the Appellant that the signatures appearing thereon were not his. The onus in this respect, as already observed, was upon the Respondent. However, this was not discharged, as only one of the witnesses was produced, and he too was admittedly a relative of the Respondent. Whilst considering this matter in the Initial Judgment it was observed by the learned civil Judge that the "Learned counsel for plaintiff contended that the other marginal witness was not in his contact therefore, the plaintiff was not in a position to produce him in Court". However, when this aspect is examined, it emerges that under cross-examination the Respondent had conceded that Laiq Ahmed, the witness who was not produced, was the occupant of the adjoining shop. As such, there was apparently no valid reason for him not to have been produced as per the mandatory requirement of law. Nonetheless, the learned civil Judge went on to hold that the circumstantial evidence and the expert's report were sufficient to prove the execution of the Sale Agreements. Having considered the matter, I am with utmost respect unable to agree with this finding. As previously discussed, the experts report itself lacked evidentiary value, and, if anything, the so called circumstantial evidence only served to highlight unbridged gaps in the version of the Respondent. Accordingly, I am of the opinion that the execution of the Sale Agreements was not satisfactorily proven as per the mandate of law, due to which the judgments and decrees passed by both the Courts below cannot be maintained, as per the judgment of the honourable Supreme Court reported as Rafaqat Ali and others v. Mt. Jamshed Bibi and others 2007 SCMR 1076, and the single-bench Judgments of this Court in Maqsood Ali Khan's case (Supra) as well as Zafar Iqbal's case (Supra).

18. Turning now to the point of limitation, from a plain reading of Article 113 it is apparent that the same conceives two situations, the first being where the date for performance is specified in the agreement, and the other where no such date is specified. Under the first part, time begins to run from the date fixed for the performance, whereas, under the second part, where no such is fixed, time begins to run from the date when the plaintiff has notice performance of the agreement is refused. Whilst, correctly observing that the Sale Agreements do not fix a specific date for performance and thus proceeding in terms of the second part, the Courts below then came to the conclusion that the Civil Suit filed by the Respondent was within time as it had been instituted in period of three years from the date of the legal notice dated 09.01.2010 said to have been addressed by him to the Appellant, which was determined in terms of the Initial Judgment and the Appellate Judgment to be the date on which the Respondent had sufficient notice that performance of the Sale Agreements was being refused. It is this aspect and the reasoning that prevailed with the Court at first instance and the first appellate Court that requires examination.

19. In this regard, it has to be considered that as per the Respondent, a legal notice was addressed to the Appellant on 02.05.2001 to no avail, and a reminder was then sent though counsel on 26.04.2004, but no reply was received. It is then said that on a publication being effected in a newspaper by the purchaser of some other shop in the same project in which the Shops are situated, the Respondent addressed a letter to the Appellant on 27.04.2007, in response to which the Appellant is said to assured the Respondent as to completion of performance during the first week of January 2010. It is said that upon the failure of the Appellant to fulfil such commitment, the counsel of the Respondent addressed yet another legal notice dated 09.01.2010 to the Appellant, which again remained unreplied. It is this notice that has been treated by the Court below as the date of commencement of the period of limitation under Article 113.

20. It has to be considered that having denied the execution of the Sale Agreements, the Appellant had also denied knowledge of the notices said to have been addressed by the Respondent, and, indeed, no proof of despatch/receipt was provided by the Respondent and no correspondence was placed on record to indicate any acknowledgment on the part of the Appellant as to the existence of the Sale Agreements or acceptance of any obligation in respect of the Shops. As such, there is no foundation to support the finding of a continuing series of causes of action. In the case of Bomanshaw Burjorji Gazdar (Supra) a notice calling upon a part to perform a contract, when remaining unacknowledged, was considered by the honourable Supreme Court as sufficient to put the sender on notice that performance was being refused. Furthermore, in Zafar Iqbal's case (Supra), the conduct of a party in failing to perform the agreement upon being approached to do so was considered to constitute sufficient notice to the counter-party seeking performance that the same was being refused. As per the reported facts, the latter case appears to have been the mirror image of the matter at hand as regards the aspect of limitation, in as much as the suit in that case had been held to be barred under Article 113, and such finding had been upheld in appeal. In proceedings in revision under section 115, C.P.C. it was contended that as no specific date had been prescribed for performance, the case fell under the second part of Article 113, and as performance had not been specifically refused and the applicant had been kept on hopes therefore the limitation period did not start running. It is in this context that the learned single Judge made the aforementioned observation, which in my view would be squarely applicable as regards the case set up by the Respondent in the Civil Suit. Thus, in my view, under the given circumstances and in light of the aforementioned precedents, the period of limitation as per Article 113 began to run as against the Respondent from date of the legal notice dated 02.05.2001 and the Civil Suit was thus clearly barred by limitation.

21. In view of the foregoing, it is evident that judgments of the Courts below cannot be sustained and this Second Appeal thus succeeds with the result that the Appellate Judgment and Initial Judgment are set aside, and consequently any benefit derived by the Respondent thereunder in respect of title to the Shops is also set aside and is to be reverted/restored to the Appellant.

22. This Second Appeal is allowed in the above terms. ZC/P-5/Sindh Appeal allowed.