ABDUL RASHEED vs Syed FAZAL ALI SHAH
This matter concerns a petition for leave to appeal against the dismissal of a Regular First Appeal, which had upheld a trial court decree in a suit for recovery based on a cheque under Order XXXVII of the Code of Civil Procedure 1908. The petitioner raised contradictory defenses, initially claiming the cheque was provided as security for a loan and subsequently denying the authenticity of the signature on the cheque. The core legal question was whether the trial court was obligated to independently seek expert opinion regarding the disputed signature despite the petitioner's failure to request such an examination. The Supreme Court dismissed the petition, holding that the court is not required to 'fish for evidence' or fill lacunae in a party's case where the party itself has been delinquent in proving its own defense. The Court affirmed that there is no mandatory duty upon the court to appoint a handwriting expert absent an application from the party concerned, especially when the petitioner failed to produce evidence to substantiate their claim of forgery.
- Is a court legally obligated to appoint a handwriting expert to verify a signature if the party challenging the signature fails to apply for such an appointment?
- Can a court be required to 'fish for evidence' or fill lacunae in a party's case to assist a delinquent litigant?
- Does the mere testimony of bank officers regarding a signature constitute expert evidence sufficient to disprove a signature in a civil suit?
- Order XXXVII, Code of Civil Procedure 1908
ORDER
' MIAN SAQIB NISAR, J.---The suit of the respondent under Order XXXVII, C.P.C. For recovery based upon a cheque has been allowed after grant of leave to the petitioner and it has been found by the Trial Court that the cheque has been issued by the petitioner. The R.F.A. Against that judgment has also failed.
2. Learned counsel for the petitioner has stated, that in fact a security cheque was given to the respondent only for 10 days, and this was a security for the repayment of the loan. However, at the same time it is argued that the cheque in question does not bear the signature of the petitioner, as this has so been stated by the Bank Officers, and appearing as witnesses before the Trial Court, suffice it to say that there is a serious contradiction between the two stances taken up by the learned counsel for the petitioner today. Besides, it is conceded that the cheque belongs to the petitioner and there is no evidence that the cheque was A stolen by the respondent. Moreover, the petitioner did not at an appropriate point of time produce any expert to establish that the signature on the cheque does not belong to the petitioner. The statements of the Bank Officers, in the facts and circumstances of the case, are not relevant because they are not hand-writing experts capable of establishing or refuting the disputed signature of the petitioner. Though reliance has been placed on Zar Wali Shah v. Yousaf Ali Shah and 9 others (1999 SCMR 1778) to argue, that the Court should have sought an opinion from an expert, suffice it to say that it has never been held therein that it is a compulsion and a duty of the Court to do so especially when the petitioner never applied to the Court in this behalf. It is not required of a Court to fish for the evidence for a party and to fill up the lacuna of its case, particularly in the matter where the party itself is delinquent to prove its own case. In the light of the above, no case is made out for interference.
Dismissed accordingly.
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