MUHAMMAD SHARIF Versus ABDUL LATIF
1. This revision petition is filed by the plaintiff against the judgment and decree dated 12‑12‑1985 passed by the Ex‑Officio Additional District Judge, Karachi, thereby dismissing the appeal and affirming the judgment dated 31‑7‑1978 and decree dated 4‑3‑198 passed by XXIInd Civil Judge, Karachi.
2. The case of the petitioner as set out in the plaint is that he entered into an oral agreement with the respondent on 18‑1‑1965 for the purchase of structure consisting of tin shed of three rooms, situated at Plot No.F/148, measuring 80 square yards, Zubairi Colony. Manghopir Road, Karachi for a consideration of Rs.2,000. It is further alleged that the petitioner took physical possession of the aforesaid structure on the same day i.e. 18‑1=1965 on entering into or a agreement of sale after paying Rs.500 to the respondent out of the total sale consideration of Rs.2,000. Out of the balance, a sum o Rs.500 was paid by the petitioner to the respondent on 18‑11‑196 and further a sum of Rs.1,000 was paid on 12‑10‑1966 when the sail oral agreement was reduced into an agreement in writing. A separate receipt acknowledging the payment of the entire sale consideration o Rs.2,000 was also issued by the respondent. It is further case c the petitioner that thereafter he applied for ration card and obtained, the same and also got electric connection in his name. The petitioner also improved the condition of the house in his possession, It further alleged that the original agreement and receipt were somehow misplaced by him, which fact came to the notice of the respondent who took advantage of the situation and instituted D.W. proceeding, against the petitioner in the Court of Small Causes, Karachi, being D.W. Application No.447/1972. In the D.W. application, the respondent alleged that the petitioner was his tenant at the rate of Rs.40 pc month in respect of the aforesaid premises and the petitioner was in arrears of rent for twelve months from 1‑7‑1971 to 30‑6‑1972. The petitioner contested the said proceedings and filed his objection but on the date of hearing his Advocate was absent and so he could not produce the purchase documents which were in possession of his Advocate. The petitioner engaged another Advocate who applied for adjournment to produce the documents, but the reques was refused and the D.W. application was allowed. The petitioner filed Revision Application in this Court which was, however, also dismissed by judgment dated 29‑1‑1978. During the pendency of the above Revision Application, the Petitioner filed the Suit No.2276n972 in the Court of Civil Judge, Karachi for declaration and injunction.
3. The respondent who resisted the claim of the petitioner inter alia contended in his written statement that he never entered the oral agreement of sale of the structure on the aforesaid Plot No.F/148, measuring 80 square yards, Zubairi Colony, Karachi. He also denied that he had received any money from the petitioner and contended that the sale agreement and receipt set up by the Petitioner were fabricated to support a false claim. He pleaded that the petitioner was inducted as a tenant and paid rent upto 30‑6‑1971. Thereafter the defendant filed D.W. proceedings which were allowed in his favour.
4. The learned trial Judge dismissed the suit for declaration and injunction. As against the judgment in Suit No.2261/1972, appeal was preferred by the petitioner which was ultimately tried by the Ex‑Officio Additional District Judge, Karachi, which was dismissed. Against the decree passed by the Ex‑Officio Additional District Judge this revision petition is preferred by the Plaintiff.
5. After the trial before the Civil Judge in support of claim for declaration and injunction, besides the plaintiff, one witness to the agreement and receipt was examined as witness by the petitioner. P.W.2 (Ext.10) Muhammad Ali the attesting witness deposed that the respondent got his signature on a document which was already written and had also received Rs.1,000 from the petitioner in his presentee. He further deposed that Exts 2 and 3 bear his thumb mark. The petitioner deposed ,that he had purchased structure from the respondent ,in 1965. Sale agreement (Ext.2) was executed. The respondent received Rs.2,000 and issued receipt (Ext.3)
6. The respondent appeared as a witness. He deposed that the petitioner was inducted as a tenant. He deposed that it is not a fact that he has sold the house to the petitioner. The sale agreement and receipt are forged documents and do not bear his signature. The trial Court on the pleadings of the parties framed various issues and dismissed the suit of the petitioner.
7. The trial Judge on a consideration of the evidence held that the evidence in support of the case of the petitioner was unreliable and the agreement and receipt relied upon by the petitioner were forged. He also found that the petitioner was the tenant of the respondent.
8. The judgment and decree of the trial Court were challenged in appeal before Ex‑Officio Additional District Judge. The learned Additional District Judge dismissed the appeal holding that the break of payment was not mentioned in the agreement (Ext.2). He held that the sale agreement and receipt are not genuine documents and no consideration was paid by the petitioner to the respondent. He also held that the petitioner was inducted into the property as tenant. The said decision of the Additional District Judge has been challenged in this revision by the plaintiff.
9. It is necessary to scrutinise with some care the story of the petitioner about this oral agreement, execution of sale agreement and receipt. The respondent filed D.W. application No.447 of 1972 against the petitioner for arrears of rent for twelve months from 1‑7‑1971 to 30‑6‑1972 in respect of the suit premises. The petitioner filed counter affidavit wherein he denied the title of the respondent, possession and ownership. The case as set out in the counter affidavit is that "the petitioner paid the full price of these premises and is in consequence in possession since 1965 as owner and occupier of premises No.F‑148, Zubairi Colony, Karachi". A perusal of counter‑shows that there was no oral agreement for purchase of the suit premises and there was no mentioned of sale agreement and receipt. The Distress Warrant application was allowed.
10. The case as set out in the plaint in Suit No.2261/1972 is that the petitioner entered into an agreement with respondent on 18‑1‑1965 for the purchase of structure containing tin shed of three rooms on Plot No.F/148, Zubairi Colony, Karachi for a consideration of Rs.2,000. The petitioner took physical possession of the aforesaid structure on 18‑1‑1965 after paying to the respondent Rs.500 as first instalment and the balance of Rs.1,500 was paid by the petitioner to the respondent in instalments till 12‑10‑1966 when the above agreement was reduced into writing and a separate receipt acknowledging the payment of entire consideration of Rs.2,000 was issued by the respondent. In the agreement it is recited that the price for sale of the structure was settled at Rs.2,000 that the respondent had received Rs. 2,000 in instalments. The agreement was executed according to the petitioner on October 12, 1966. According to the recitals in the agreement Rs.2,000 were paid by the petitioner in instalments, under the terms of. the agreement, but there was not even a slip of paper taken from the respondent acknowlodging receipt of the money. The agreement was not executed by the respondent till October 12, 1966, even on the petitioner's case. The story that the petitioner parted with this large sum of money without taking any receipt from the A respondent is highly improbable. A perusal of receipt shows that Rs.2,000 were received by the respondent from the petitioner on 12‑10‑1966. There is no mention of instalments. The petitioner took physical possession on payment of Rs.500 only and was willing tot pay Rs.1,500 in instalments. As prudent person he would have asked the respondent to acknowledge in writing the receipt of money. The recital incorporated in the agreement until it was executed could serve no purpose. Such a recital incorporated an agreement engrossed on a stamp paper purchased by the respondent. It would be difficult to believe that the petitioner would part with a large sum of money without obtaining from the respondent a writing acknowledging receipt of the amount.
11. There is one more circumstance which has relevance in his case. The petitioner had mentioned in his counter‑affidavit filed in D.W. proceedings that he had purchased the house in 1965. The petitioner admitted in his cross‑examination that he was ordered to produce proof of this ownership but he had not produced any such proof before that Court. The petitioner deposed in his examination that there was no agreement executed between him and the respondent. The agreement and the receipt on which reliance was placed were not originally produced in the plaint. The petitioner did not care to send the agreement and receipt to the handwriting expert. The conduct of the petitioner in avoiding to send the documents for examination by an independent handwriting expert also raised a serious suspicion against the truth of his story. The petitioner did not examine the stamp vendor nor the attesting witness. P.W.2 Muhammad Ali deposed that the respondent got his signature on a document which was already written. The document bears the signature of witness Nizamuddin. I He deposed that he saw the respondent for the first time on the day when he paid the amount to Sharif. In my view, the testimony of P.W.2 Muhammad Ali was rightly regarded by the Court below as unreliable.
12. I shall deal with the criticism levelled by learned counsel for the petitioner with regard to the admissibility and the evidentiary value of documentary evidence. It is section 67, Evidence Act or Article 78 of Qanun‑e‑Shahadat, 1984 which would apply. Section 67/Article 78 do not lay down any particular mode of proof for proving that a particular writing or signature is in the hand of particular person. Thus, the signatures may be proved in any one or more of following modes:‑
(a) By calling the person who signed or wrote a document;
(b) By calling a person in whose presence the documents are signed or written;
(c) By calling handwriting expert;
(d) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written;
(e) By comparing in Court the disputed signature or handwriting with some admitted signatures or writing;
(f) By proof of an admission by the person who is alleged to have signed or written document that he signed or wrote it;
(g) By the statement of a deceased professional scribe made in the ordinary course of business that the signature on the document is that of a particular person.
13. A signature is also proved to have been made, if it is shown to have been made at the request of a person by some other person, e.g. by scribe who signed on behalf of the executant;
(h) By other circumstantial evidence.
14. It is in the light of the aforesaid legal position I proceed to examine whether the sale agreement (Ext.2) and receipt (Ext.3) are proved to have been signed by the respondent. The sale agreement and receipt have been attested by two witnesses, one Muhammad Ali and the other Nizamuddin. It is said that out of the said two persons only one is alive and the other is dead. The only attestor who is alive is one Muhammad Ali who has been examined as P.W.2. The evidence of P.W.2 is that the document was already written and it was also bearing the signature of Nizamuddin and the respondent. He is categorical in his statement that he was not present when the respondent is alleged to have executed the sale agreement. Thus the agreement (Exh.2) cannot be said to have been proved through any of the attestators.
15. The only attesting witness examined before the Court has denied that the respondent signed the agreement in his presence and he attested the signature of the respondent. The execution of Ext.2 may, therefore, be proved by other evidence that is by calling the handwriting expert but no steps were taken by the petitioner in this behalf. The original documents and the admitted signatures of the respondent were sent to the handwriting expert by order dated 1‑4‑1987. Ghulam Abbas Jaffery, Assistant Inspector‑General of Police, Handwriting Expert sent his report dated 20‑8‑1987 wherein he opined that the prominent characteristics of the disputed signatures on agreement and receipt dated 12‑10‑1966 are not in agreement with those of the specimen of respondent on written statement, counter affidavit and vakalatnama.
16. I have made a very careful comparison between the alleged signatures of respondent on these two disputed documents and the signatures on the written statement, counter‑affidavit, Vakalatnama and specimen signatures obtained by me and I find that the signatures of respondent on the latter set of documents are totally dissimilar to the signatures on Exts. 2 and 3. In fact the signatures on the written statement, counter‑affidavit, Vakalatnama and the specimen signatures appear to be in different hand altogether from that in which signatures are written on Exts. 2 and 3. The signatures on H written statement and Vakalatnama are in mature writing, as against the signatures on Exts.2 and 3, the writing whereof is immature. A mere glance at the two set of documents would be sufficient to show that the signature of respondent is written on written statement, counter‑affidavit, Vekalatnama and specimen signatures by one person, and on Exts.2 and 3 by another different person. I have to therefore, agree with the views of the Courts below that the due execution of ,agreement and receipt has not been proved in this case.
17. The circumstances of the case are, in my Judgment, eloquent. There is no documentary evidence apart from the disputed writing evidencing payment of Rs.2,000 by the petitioners to the respondent. The petitioner has not led any evidence to support his case that he has: a substantial amount of cash with him. He has not produced account in support of his case.
18. I have carefully considered the evidence of the witnesses and the relevant documentary evidence and I have no doubt that the Courts below were right in holding that documents Exts.2 and 3. which purport to bear the signatures of the respondent are fabricated documents and the petitioner was inducted as a tenant by the respondent. The learned Courts below had considered these documents and having read the same coniunctivply with the other evidence brought on record and discussed by the Courts below. It was held that neither sale agreement nor payment of price had been established by the petitioner.
19. It has been rightly pointed out by the learned‑counsel for the respondent that the points relate to controversies of facts and having been concurrently found against the petitioner, there is hardly any justification for this Court to interfere therewith in exercise of its revisional jurisdiction .
20. In the circumstances the revision petition fails and is dismissed with costs.
21. M . Y . H . / M‑612/ K
22. Petition dismissed.