1985 PLP 1289 (SCMR)

S.A. NUSRAT, J.‑‑This petition for leave to appeal is from the judgment of the Sind High Court dated 11‑1‑1984 which was passed in the background of the following facts. 2. The petitioner filed a suit against the respondent for the recovery of Rs. 24,000 in the Court of the Additional District Judge, Karachi, on the allegation that the. respondent by an agreement, dated 10‑2‑1960 had contracted to supply 400 maunds of Sambhar Leather scrap to him at the rate of Rs. 105 per maund for a total amount of Rs. 42,000 and was paid Rs.23,000 in cash under a receipt on the same date. It was further alleged that the petitioner had also delivered a cheque for Rs.20,000 to the respondent as security which was returnable to him upon his making cash payment to the respondent 'after the disposal of the said leather scrap. It was pleaded that the respondent having failed to supply the goods was liable to return the deposit of Rs.23,000 with interest at the rate of Rs. 6 per cent per annum. 3. The receipt of Rs.23,000 was denied by the respondent who pleaded that the deal between the parties was oral according to which the delivery of the goods was to be taken on 11‑2‑1960 by the petitioner against each payment and the cheque for Rs. 20,000 was handed over by the petitioner on the understanding that after the delivery of the goods against cash payment the same would be returned. The petitioner, according to the respondent, did not turn up to take the delivery as promised and the contract thus came to an end. The cheque was not encashed by the respondent. 4. As the receipt dated 10‑2‑1963 for the payment of Rs.23,000 was denied by the respondent, the petitioner sought to prove the same through a handwriting expert who submitted a report to the effect that the signature on the receipt did not appear to have been made by the respondent. The handwriting expert was not summoned by the petitioner in spite of the order of the Court and was given up and instead an application was made to the trial Court to ignore his report and decide the case on the basis of evidence on the record and by comparing the signature under section 73 of the Evidence Act by the Court itself. The suit was decreed by the trial Court on May 30, 1970, wherefrom a first appeal was taken to the High Court by the respondent which was allowed as per impugned judgment. Hence this petition. 5. In the appeal before the High Court it was contended on behalf of the respondent that the plaint was initially presented by the petitioner on 11‑2‑1963 with a court‑fee of Rs.100 which was returned twice with objection on account of deficiency in court‑fee and when it was finally presented with proper court‑fee on 18‑3‑1963 the 'suit had already become time‑barred. This contention was upheld by the learned High Court. However, the case was also examined on merits and it was held on the basis of the evidence, which has been fully discussed in the impugned judgment that the petitioner had failed to prove the payment of Rs.23,000 to the respondent as alleged. 6. The findings of the High Court, both on the question of limitation as well as on merits of the case were challenged before us by the learned counsel for the petitioner. However, we asked the learned counsel to first satisfy us on the merits of the case. 7. It was contended by the learned counsel that since the trial Court had found the receipt for payment of Rs.23,000, dated 10‑2‑1960 to be genuine by comparing the signature of the respondent, the High Court should have compared the signature and given a finding accordingly. The contention has no force because the burden of proving the disputed receipt lay heavily on the petitioner, who had first chosen to examine a handwriting expert, who, after he had given an adverse opinion, was given up and not summoned by the petitioner. The High Court refrained from comparing the disputed signature with admitted signature on account of contradictory statements existing on the record. Instead the evidence of the respondent was examined and it was held that the petitioner had failed to establish that the disputed receipt was executed by the respondent and Rs. 23,000 were paid to him. Such finding arrived at by the learned High Court on the basis of evidence is one of fact and no question of law worth consideration arises in the petition. We find no merits in this petition which is dismissed accordingly. M. I. ?????????????????????????? ??????????????????????????????????????????????????????????????????????? Petition dismissed.