1986 PLP 2613 (CLC)

‑‑‑S. 115‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 59‑‑Revisional jurisdiction, exercise of‑‑Failure to have recourse to comparison of signatures‑‑Effect‑‑Signature on disputed agreement of sale having been denied by petitioner/ executant, Trial Court after comparing disputed signature with admitted signature of petitioner on Vakalatnama and written statement filed by him concluded that disputed signature on agreement of sale was not that of petitioner‑‑Appellate Court below without referring matter to Handwriting Expert or comparing signature with admitted signature of petitioner, relying on inconsistent and unreliable evidence produced by respondent reversed findings of Trial Court‑‑There being no material available before Appellate Court below justifying reversal of judgment of Trial Court, High Court in exercise of revisional jurisdiction set aside judgment and decree of Appellate Court and restored that of Trial Court in circumstances. S. Hamid Ali Rizvi for Applicant. Respondent in person. Date of hearing: 2nd March, 1986. This Revision Application is filed by the applicant/ defendant against the order of First Appellate Court dated 4‑11‑1981, whereby the judgment of trial Court was reversed and the suit of respondent/ plaintiff for specific performance of the agreement of sale, dated 18‑10‑1976 has been decreed. The respondent /plaintiff instituted Suit No.711/1979 for specific performance on the allegations that on 18‑10‑1976, the applicant/ defendant executed an agreement of sale in his favour after having received the entire sale consideration of Rs.5,000, agreeing to convey the property in suit in his favour. The suit was resisted by the defendant /appellant, who denied the agreement of sale, dated 18‑10‑1976, and claimed that the respondent /plaintiff is his tenant in respect of the suit premises. On the basis of above controversy between the parties, the trial Court framed the following Issues:‑ "(I) Whether the plaintiff dishonestly manufactured alleged receipt, dated 18‑10‑1976 with a view to deprive the defendant from the ownership of the premises in question and arrears of rent and it is forged/void document and not binding on the defendant? (2) Whether the defendant agreed to sell a portion of plot 48 Moula Ram Compound Malir Karachi to the plaintiff for consideration of Rs.5,000 and after receiving the consideration i.e. Rs.5,000 the defendant executed an agreement, dated 18‑10‑1976? If so, what are its effects? (3) What should be the order?" On issues Nos. l and 2, which were the main issues in the case, the trial Court reached the conclusion that the respondent failed to establish that the applicant had executed the agreement of sale, dated 18‑10‑1976 and as a result of above findings he dismissed the‑suit of the plaintiff /respondent. On appeal the First Appellate Court did not agree with the conclusions of trial Court and held that the witnesses examined by respondent/plaintiff to prove the agreement of sale (Exh.6), sufficiently established the execution of the same by the applicant/ defendant. The First Appellate Court accordingly reversed the judgment of the trial Court and decreed the suit of plaintiff /respondent for specific performance of the agreement, dated 18‑10‑1976. The learned counsel for the applicant /defendant contends that reversal of judgment of trial Court by the Ist Appellate Court is based on misreading of evidence on record. It is contended that none of these witnesses, before whom the agreement Exh.6 was allegedly signed by the applicant, were examined by the respondent, but inspite of that the First Appellate Court reached the conclusion that execution of Exh.6 has been sufficiently established. It is an admitted position in the case that the respondent was inducted into the premises as a tenant initially on a monthly rent of Rs.100 on 10‑9‑1976. The case of the respondent /plaintiff before the trial Court was that immediately after his induction into the premises as a tenant he was approached by the applicant /defendant with the request to purchase the premises let out to him to which he agreed and entered into agreement of sale with the applicant /defendant on 18‑10‑1976. In his evidence before the trial Court, the respondent/ plaintiff stated that the agreement of sale (Exh.s) was executed in presence of three persons namely Baqar Abbas Zaidi, Hashmat All Beg and one Sabri. In cross‑examination he stated that the negotiations regarding sale of the said premises had taken place on 18‑10‑1976 after "Maghrib Prayer" and at that time Baqar, Sabri and Hashmat were present. Abdul Hamid Sabri (Exh.9) in his evidence stated that the disputed writing Exh.6 was written by him at the instance of respondent. In cross‑examination he admitted that neither Exh.6 was signed in his presence, nor any consideration was paid to the applicant /defendant in his presence. He also stated that he left the premises before Maghrib prayers. Abdul Hamid Sabri in his examination‑in‑chief did not mention presence of any witness besides him, but in cross‑examination he stated that some other persons were also present at the time he wrote Exh.6, but he did not know them. The respondent /plaintiff examined one more witness Mirza Humayun Beg (Exh.10) to prove execution of Exh.6. This witness in his examination‑in‑chief stated that on the day I.e. 18‑10‑1976, he had gone to the premises of respondent/ plaintiff where there was a talk about the sale of premises and he put his signature as witness. He did not state in his examination‑in‑chief about the presence of any other witness, but in cross‑examination he stated that there were 3‑9 other persons also present at that time, but he did not know whether they were from the: side of the defendant or from the side of the plaintiff. He further stated that he reached the disputed premises after Maghrib Prayers on his scooter, but claimed that Exh.& was written by one Sabri in the disputed premises. Regarding payment of consideration, he stated that the sum of Rs.5,000 was paid in his presence, and this suit consisted of notes of RS.100 each. The learned First Appellate Court relied on these two witnesses namely Sabri and Mirza Humayun Beg in arriving at the conclusion that execution of Exh.6 by the applicant was established and reversed the findings of the trial Court, holding that these witnesses were not shown to be inimical to the applicant. The learned First Appellate Court, however, completely overlooked the fact that the evidence of Sabri was wholly irrelevant for the purposes of proving the execution of Exh.6, as this witness categorically stated that neither Exh.6 was executed by the parties in his presence nor any consideration was paid in his presence. In so far the evidence of other witness Mina Humayun Beg was concerned, the learned First Appellate Court equally failed to notice that the presence of this witness was neither mentioned in the examination‑in‑chief nor in the cross‑examination of the plaintiff/ respondent. The presence of this witness is also not admitted by the other witness examined by respondent namely A. Hamid Sabrf, who had written the document, Exh.e. It is also worth noticing that witness Sabri in his evidence categorically stated that he wrote Exh,6 before Maghrib prayers, and then left the premises for offering his prayers, but the witness Mirza Humayun Beg, who admittedly reached the premises after Maghrib prayers on his scooter, claimed that Exh.6 was written by Sabri. These glaring inconsistencies in the evidence of Mirza Humayun Beg made evidence of this witness completely unreliable and irrelevant, and could not form the basis of reversal of the findings of trial Court. It may also be mentioned here that the signature on the document Exh.6 was denied by the applicant /defendant, but no effect was made to prove his signature by referring it to a Handwriting Expert. The learned trial Court after comparing the disputed signature with the admitted signatures of defendant /applicant on Vakalatnama and written statement came to the conclusion that the disputed signature was not that of applicant /defendant, No objection was apparently raised before the trial Court with regard to the above procedure adopted by the trial Court for comparing the signature of applicant. The learned First Appellate Court itself made no attempt to compare the disputed signature with the admitted signature of the applicant, and in the absence of that there was hardly any material available before Ist Appellate Court which justified reversal of the judgment of trial Court which is fully in accord with the evidence on record. I accordingly accept this Revision Application, set aside the judgment and decree of the Ist Appellate Court and restore the judgment and decree of the trial Court. In the circumstances of the case, there will be no order as to costs. H . B . T . Revision petition accepted.