-O.XXXVII, S. 115--Suit for recovery--Application for comparison of thumb-impression of petitioner was dismissed--Denial of promissory note-

 PLJ 2022 Lahore 327

Civil Procedure Code, 1908 (V of 1908)--

----O.XXXVII, S. 115--Suit for recovery--Promissory note--Application for comparison of thumb-impression of petitioner was dismissed--Denial of promissory note--duty of beneficiary of document--Challenge to--Petitioner while filing his written statement categorically asserted that thumb-impression over alleged pronote does not belong to him and also filed an application for comparison of his thumb-impression with one available on Pronote--The said application was dismissed by trial on sole ground that party itself has to prove its case by producing evidence and it cannot use shoulders of Court for creating any evidence in his favour--This is not a sufficient ground to turn down request of petitioner for comparison of thumb-impression--Where executant of a document denies execution of such document, it becomes duty of beneficiary of document to apply to Court for getting writing signatures thumb-impression thereon compared from an expert--Every available possible mode should be used by Courts for resolving real controversy between parties--Law laid down by Hon’ble Apex Court has escaped from judicial consideration of trial Court which passed impugned order illegally which is not sustainable in eyes of law--Revision petition allowed. [Pp. 328, 329 & 330] A, B, C & E

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Arts. 59 & 84--Jurisdiction of Court--Trial Court has jurisdiction to avail facility of expert opinion for reaching fair and just decision of case.                                                         [P. 329] D

2009 SCMR 264, 2012 SCMR 1258 & 2010 MLD 1745 ref.

Mr. Faisal Taimoor Tarar, Advocate for Petitioner.

Mr. Waqas Ahmad, Advocate for Respondent.

Date of hearing: 2.11.2021.

PLJ 2022 Lahore 327
Present: Ch. Muhammad Iqbal, J.
MUHAMMAD IKRAM--Petitioner
versus
CH. MUHAMMAD GULFAM--Respondent
C.R. No. 231370 of 2018, decided on 2.11.2021.

Judgment

Through this civil revision, the petitioner has challenged the validity of an order dated 10.05.2018 passed by the learned Additional District Judge, Ferozwala, who dismissed the application of the petitioner for comparison of his thumb impressions.

2. Brief facts of the case are that the respondent/plaintiff filed a suit for recovery of Rs. 18,30,000/- under Order XXXVII C.P.C against the petitioner/defendant on the basis of a promissory note. The petition for leave to appear and defend the suit filed by the petitioner was accepted whereafter he filed written statement denying his thumb-impression on the Pronote. The petitioner/defendant also filed an application for comparison of his thumb-impression with the thumb-impression available on the Pronote. The learned trial Court dismissed the said application vide impugned order dated 10.05.2018. Hence, this civil revision.

3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

4. Admittedly, the petitioner/defendant while filing his written statement categorically asserted that the thumb-impression over the alleged pronote does not belong to him and also filed an application for comparison of his thumb-impression with the one available on Pronote. The said application was dismissed by the learned trial on the sole ground that party itself has to prove its case by producing evidence and it cannot use the shoulders of the Court for creating any evidence in his favour. This is not a sufficient ground to turn down the request of the petitioner for comparison of thumb-impression. It is well established principle of law that where the executant of a document denies execution of such document, it becomes duty of the beneficiary of the document to apply to the Court for getting the writing/ signature thumb impression thereon compared from an expert. Although the opinion of handwriting expert is not conclusive proof, but in the peculiar circumstances of the case it might be the only mode to prove the Pronote. In the present era, for just decision of a case, every available possible/modern mode should be used by the Courts for resolving the real controversy between the parties. Even otherwise, under Article 59 read with Article 84 of Qanun-e-Shahadat Order, 1984 the learned trial Court has the jurisdiction to avail the facility of the expert opinion for reaching fair and just decision of the case. The aforesaid provisions are reproduced as under:

“59. Opinion of experts. When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand-writing or finger impressions, or as to authenticity and integrity of electronic documents made by or through an information system, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions or as to the functioning, specifications, programming and operations of information system, are relevant facts.

Such persons are called experts.

.......

“84. Comparison of signature, writing or seal with others admitted or proved. (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

(3) This Article applies also, with any necessary modifications, to finger-impressions.”

(emphasis supplied)

The matter of obtaining the expert opinion with regard to the thumb impression, handwriting or signature of a party qua the discard of execution of a document, the Hon’ble Supreme Court of Pakistan in a case titled as Mst. Akhtar Begum vs. Muslim Commercial Bank Ltd. (2009 SCMR 264), has held as under:

“7. We have minutely examined the disputed documents. In view of the emphatic denial by the petitioner of having signed the aforesaid documents. In our view, it was imperative for the Banking Court to have referred the same to handwriting expert for obtaining his opinion whether the purported signatures on the disputed documents were in the handwriting of the petitioner or were forged or manipulated by somebody else. The above very important aspect of the case not only escaped the attention of the Banking Court but the High Court also did not take notice thereof without realizing that a person cannot be made liable or responsible to make payment which he or she would otherwise not legally be bound to pay but being pressurized or forced to pay on the around of some forged or manipulated documents. Persistent, strong and vehemence denial of the petitioner of her signature on the mortgage deed, power of attorney, etc. led us to make a comparison of her denied signatures with her admitted signatures and the comparison was made with the naked eye but the results were not very encouraging and the peculiar facts and circumstances of the case warranted such comparison by a handwriting expert for conclusively hold that the disputed documents bear the signature of the petitioner.”

(emphasis supplied)