' This R.F.A. Has been filed against the judgment and decree dated 19-2-2003 passed by learned Additional District Judge, Bahawalpur whereby the suit filed by the respondent for recovery of Rs.1,50,000 on the basis of two cheques was decreed.
2. Briefly the facts are that Pervaiz Akhtar respondent filed a suit in summary jurisdiction under Order XXXVII, rules 1 and 2, C.P.C. Claiming therein that as the appellant/defendant was in dire need of money and they were on friendly terms, hence at the request of the appellant the respondent advanced a loan of Rs.1,50,000 and thereafter, on the pressing demand of the respondent, the appellant issued two Cheques bearing No.830537 dated 12-3-1998 for the sum of Rs.70,000 and another bearing No.830539 dated 13-3-1998 for a sum of Rs.80,000 payable at Dera Bakha Branch of Habib Bank Limited, Bahawalpur but when these two cheques were presented by the respondent for payment, both were dishonored with the direction "refer to drawer". This necessitated the respondent to file a suit for recovery of R.1,50,000 under section XXXVII, C.P.C. Being negotiable instrument. The appellant was allowed to appear and defend the suit vide order dated 3.11-1998 subject to furnishing containing security bond in the sum of Rs.2,00,000 (two lacs) and on compliance of the said order, he was allowed to file written statement, wherein he specifically denied the issuance of any cheques in favour of the respondent claiming that both the cheques were removed/stolen from his Cheque Book, though the appellant's Account relating to these cheques had already been transferred in the name of his son and proper intimation was also given to the Manager of the said Branch and it was on the institution of the suit when the appellant came to know about the theft of those cheques.
3. Keeping in view the divergent pleadings of the parties, the following issues were famed:--
(1) Whether the plaintiff has no cause of action? OPD.
(2) Whether the plaintiff lent Rs.1,50,000 and whether the defendant extended two cheques mentioned in the plaint for discharging that liability? OPP.
(3) Relief.
4. The respondent/plaintiff in his evidence produced Sycd Zulfiqar Shah, Manager Habib Bank Limited P.W.1, Rahim Sher Khan P.W.3 and Abdul Aziz as P.W.4, whereas he himself appeared as P.W.2 and closed his evidence. On the other hand, the appellant/defendant is rebuttal produced Muhammad Abbas as D.W.2 and himself appeared as D.W.1. It would not be out of place to mention here that on 8-1-2002 the appellant moved an application before the learned trial Court requesting that his signatures on the alleged Cheques be got compared from the Handwriting Expert but the same was disallowed by the learned trial Court on 2-3-2002. On conclusion of the trial, vide judgment and decree dated 19-2-2003, the learned trial Court decreed the suit of the respondent, hence, this appeal.
5. At the very outset learned counsel for the appellant has argued that the learned trial Court acted illegally and with material irregularity by refusing to grant appellant's application for comparison of signatures on the dispute cheques. The contention of the learned counsel in that in view of the express denial by the appellant about issuance of disputed cheques including his alleged signatures on the same, the appellant had rightly moved application before the learned trial Court as it was not possible for the appellant to disprove the execution for those cheques and affixation of signatures on the same by way of oral evidence. On the other hand learned counsel for the respondent has supported the impugned order of the trial Court by contending that same was rightly passed.
6. Without passing any remarks about the evidence of appellant or the respondent, suffice is to say that in such-like cases evidence of the Handwriting Expert is very helpful, though not conclusive. In the instant case, P.W.1 namely Zulfiqar.Ali Shah has not given any evidence as to whether or not the signature on the disputed cheques tally with the specimen signatures of the appellant available with the Bank. The same were not even put to the appellant when he appeared as his own witness.
I, therefore, hold that the leaned trial Court was not legally justified in C rejecting the application of the appellant for getting his alleged signatures on the cheques compared. I would not have taken note of this fact, if such a prayer had not been made before the trial Court. It is an established principle of law that opinion of Handwriting Expert is also one of the modes of evidence as recognized by Qanoon-e-Shahadat Order, 1984.The appellant much before the beginning of his evidence had moved the application to the trial Giourt, hence, he could not be held guilty of any contumacy or causing delay because till the stage for his evidence had reached, he could not have made such an exercise whereas in the instant case such application was moved when even the evidence of the respondent had not yet completed. The Hon'able Supreme Court of Palciitan in the case "Hamid. Qayyum and 2 others v. Muhammad Azeem through Legal Heirs" (PLD 1995 Supreme Court 381) held that best way of proving the disputed handwriting or signatures of a person is to get the disputed handwriting or signatures compared from the Handwriting Expert and the Court even itself may call in aid the opinion of Handwriting Expert to ascertain the proof of handwriting or signatures of the person on disputed document. I therefore, feel that the learned trial Court was not justified in disallowing appellant's application for comparison of his signatures on the dispute cheques. Now the question arises as to with which handwriting the disputed signatures of the appellant on the cheques be got compared, the answer is not difficult. Admittedly the appellant was account-holder of Dera Bakha Branch of Habib Bank Limited, Bahawalpur where his specimen signatures must have been obtained at the time of opening of the Account. Hence, the disputed signature of the appellant on the alleged cheques can be easily got compared with his specimen signatures available in the said branch of the Bank.
7. The upshot of above discussion is that, this appeal is allowed, the impugned judgment and decree of the trial Court is set aside and the case is femanded to the learned trial Court with a direction to requisition the specimen signatures of the appellant from Dera Bakha Branch of Habib Bank Limited, Bahawalpur and get the same compared with the disputed signatures of the appellant on the alleged cheques, by and Handwriting Expert, subject to deposit of necessary expenditure by the appellant and after recording evidence to this effect, decide the matter afresh.
It is however, made clear that except to the extent of comparison of signatures and the proof of report of the Handwriting Expert and relmittal evidence of the respondent against said report, if need be, none of the parties would be entitled to lead any other evidence and the case shall be finally decided on or before 31st of July, 2005. The parties are left to bear their own costs. The record of the trial Court be sent back immediately.