' GULZAR AHMED, J.---By this petition, petitioner Muhammad Ishaque Qureshi has challenged the order dated 24-12-2014 passed by the learned Judge in Chamber of High Court of Sindh, by which the IInd Appeal filed by the petitioner was dismissed.
2. Brief facts of the matter are that petitioner had filed a suit forspecific performance against the respondent on the basis of saleagreement dated 8-5-2003 in respect of two shops in New Sabzi Mandi, Superhighway, Karachi. Written statement was filed by the respondent No.1 and thereafter it appears that respondents Nos.1 and 2 have filed an application for rejection of the plaint under section VII, Rule 11, C.P.C. The trial Court through order dated 31.8.2010 rejected the plaint on the basis that terms and conditions of allotment of the two shops to the respondent No.1 did not allow him to transfer the said shops for a period of five years and secondly that the petitioner has no legal character or locus standi and sale agreement is not specifically enforceable. The trial court also noted that notice as required under section 23 of the Agriculture Produce Market Committee Act, 1939 was not given by the petitioner to the respondent before filing of the suit. The Civil Appeal filed by the petitioner was also dismissed vide judgment dated 08.10.2010 on the ground that sale agreement was found to be forged as per opinion of Handwriting Expert and that there is no documentary evidence to show payment of Rs.5,75,000/- the sale consideration and that notice was not served before filing of the suit. The petitioner's IInd Appeal was also dismissed by the impugned order dated 24.12.2014 by a learned Judge in Chamber of High Court of Sindh.
3. The only ground prevailed with the High Court for maintaining the order of rejection of the plaint was that according to the opinion of Handwriting Expert the sale agreement on the basis of which suit was filed, contained forged signatures of respondent No.1 and that the Court itself has also compared the signatures of respondent No.1 and has arrived at same conclusion that of Handwriting Expert. The other grounds on which both the courts below have proceeded to reject the plaint were found to be not justified in law.
4. We have heard the learned ASC for the petitioner so also the respondent No.1(t), one of the legal heirs of the deceased respondent No.1, who is a practicing Advocate. She stated that she is an Attorney of remaining legal heirs of deceased respondent No.1 and that Power of Attorney in this respect has been filed by her in the High Court.
5. Mr. Abdul Qadir Khan, learned ASC for the petitioner, has contended that the plaint has been rejected merely on the basis of opinion of Handwriting Expert without allowing the petitioner to adduce evidence in support of sale agreement. He has further contended that the petitioner has paid the whole of sale consideration amount of said two shops by depositing the same in the bank account of deceased respondent No.1, in support of which copy of Bank Deposit Slip was filed with the plaint and not only this, the petitioner in terms of sale agreement was also delivered possession of the shops, which he is still enjoying. He contended that proper course for the Court was to give judgment after issues are famed and evidence of the parties is recorded in the suit.
6. On the other hand, Ms. Riffat Mubeen, respondent No. V) has contended that deceased respondent No.1 had appointed the petitioner as a General Attorney through Irrevocable General Power of Attorney dated 19.3.2003 but due to some disputes between deceased respondent No.1 and the petitioner, the deceased respondent No.1 through a letter dated 03.3.2004 revoked the said Power of Attorney and also had published a public notice in newspaper. A FIR dated 30.08.2005 was also lodged by the deceased respondent No.1 at Police Station. Sohrab Cloth, Karachi. She has further contended that the agreement is forged and no consideration amount was paid as petitioner has only filed photocopy of bank deposit slip which does not prove the payment.
7. We have considered the submissions of the parties and have gone through the record.
8. As per impugned order the only ground on the basis of which the petitioner has been non-suited is that sale agreement contained forged signatures of deceased respondent No. 1 . Other grounds on the basis of which the trial court and appellate court have rejected the plaint were found by the High Court to be not legally justifiable. The respondents have not challenged such findings of the High Court. The question as to whether the sale agreement contained forged signatures cannot merely be decided on the basis of opinion of Handwriting Expert and that too without framing of issues and recording of c vIdence of the parties. The petitioner claim is that sale agreement was signed by the deceased respondent No.1, he had deposited in the account of deceased respondent No.1 whole of the consideration amount and had also received the possession of the shops. The respondent No. 1(f) during the course of her arguments has referred to Irrevocable General. Power of Attorney given by the deceased respondent No 1 to the petitioner and its revocation. These facts demonstrate that there was some relationship between deceased respondent No.1 and the petitioner and as to what transpired between them can only be ascertained by the court by framing of issues in the suit and allowing the parties to lead evidence. Once such exercise has been done the factum as to whether the agreement contained forged. Signatures of deceased respondent No.1 or not can well be determined by the Court also taking into consideration opinion of the Handwriting Expert. We are, therefore, of the considered view that matter requires determination on merits and for this reasons the impugned order is not sustainable.
9. On hearing the learned Advocate Supreme Court for the petitioner and respondent No.1(f), the following short order was passed:-- "After hearing the arguments of learned Advocate Supreme Court for the petitioner and respondent No.1(f) for self and on behalf of respondent No.1(a) to (e), (g) and (h). For reasons to be recorded separately, this petition is converted into appeal and allowed. The orders/judgments dated 31-8-2010, 8-10-2010 and 24-12-2014 are set aside and the suit for specific performance filed by the petitioner is remitted to the trial Court for deciding the same after framing of issues. Since it is an old matter, the trial Court shall ensure disposal of the suit within six months positively."
' Above are the reasons for the said order.