CH. MUHAMMAD MASOOD JAHANGIR, J.---The factual history of the petition in hand is that Saleem Nawaz respondent was owner of 80-Kanals 10-Marlas of the suit property against whom Haji Muhammad Ameer present petitioner instituted suit for specific perfor mance of contract before the learned Civil Court on 09.2.2004, pleading therein that it had been purchased against consideration of Rs.2,10,000/- out of which. Rs.1,98,800/- were paid, whereas neither the remaining consideration received nor the vendor transferred the subject area in compliance of said contract. The lower Court after registration of the suit, initially issued process through ordinary means and lastly via substituted modes by publication in some newspaper for service of the defendant. As a consequence thereof, Malik Muneer Tahir, Advocate filed Power-of-Attorney as well as contestin g written statement on behalf of defendant/vendor . The said Advocate also pursued the case for some period, but thereafter went out of the scene without leaving any reason, which act forced the learned Trial Court to initiate ex parte proceedings besides to pass decree dated 08.12.2007 of same charac ter. Having notice thereof, respondent-defendant made application for its setting aside, which though after trial was declined, however , vide impugned order dated 08.2.2016 granted, hence, this Constitutional Petition.
2. Arguments heard and record perused.
3. Through his application for setting aside of the ex parte proceedings as well as decree, it was clear stance of the defendant/respondent that neither process was served upon him, nor he appointed any counsel to represent him.
He further asserted there that plaintif f/petitioner through active connivance manag ed filing of forged and fictitious power of attorney , which was never signed by him. In response the petitioner vide his written reply specifically asserted that on 30.03.2004, the defendant personally appeared before the Civil Court and appointed above named counsel, who was not only earlier known, rather had personal relations with the respondent. It was further narrated that to avoid comparison, the signatures over written statement were made in Urdu. This left no room to observe that on behalf of contesting parties, the negation of series of acts and its assertion were specifically pleaded. The defendant in order to shake the credibility of the proceedings stepped in the witness-box as AW1 and once again repeated all the allegations on oath as detailed above. Although he was diligently subjected to cross- examination, but stood credible, as such succeeded to shift the onus to the beneficiary/plaintif f to prove his positive assertion. Even otherwise as per Roman Law ei incumbit probation qui dicit non qui negat , the burden of proving a fact rest on the party , who substantially assets the affirmative of the issue and not upon the party , who denies.
Anyhow , to prove his assertion, the petitioner (RW1) though stated that defend ant personally appeared in trial proceedings, but his deposition to that effect was not supported by any entry made by the judicial officer or the official on the suit file. Moreover , the petitioner in his cross-examination failed to disclose the date/occasion when the respondent appeared before the learn ed Civil Court during trial proceedings. As such, the beneficiary miserably failed to prove his specific asserted plea to that effect. Whereas, RW1 omitted to say anything about the alleged previous and close relationship between respondent as well as his alleged counsel, Mr. Muneer Tahir, Advocate. It was pertinent that during test of cross-examination, the petitioner (RW1) candid to admit that process for procuring service of the respondent was not issued at the address given in the plaint. During the course of deliberation, Messrs Sh. Naveed Shehryar , Humaira Bashir and Muhammad Shafiq Ahmad, Advocates for the petitioner were invited to show any documentary material to satisfy that at the address detailed in the plaint requisite summons/notices were ever issued, but they emphasized that at the known address these were sent/dispatched.
Had there been any other address in the knowledge of the petitioner , then its non-disclosure in the plaint and non- issuance of process at the given address were the plausible reasons to discredit the entire mode followed for the service of the defendant. Moreover , non-examination of the Process Server , who twicely tried to effect service upon defendant, was another factor to disbelieve the entire exercise. No doubt, under Article 129 illustration (e) of the Qanun-e-Shahadat Order , 1984, presumption of correctness is attached to judicial proceedings, but whenever those are called in question, then it is sine qua non for the beneficiary to prove the same as per mandate of Article 58 of the said Order . To bring the case under the above referred illustration, the solitary statement of the petitioner was insuf ficient. Another star witness Mr. Muneer Tahir, Advocate, who purportedly filed power of attorney as well as written statement on behalf of the defendant could be the best evidence to shatt er/belie the allegations raised by the defendant, but withheld without any justification. Learned counsel for the petitioner on being confronted to such lapse remained handicapped to justify non-examination of best available evidence. The said omission has compelled the Court to draw hostile inference that had he been brought it in the witness-box, he might have deposed against the petitioner .
4. There could be one more resort availa ble to the petitioner to prove the honest representation of the defendant through alleged counsel, by making prayer or comparison of the disputed signature s available on wakalatnama and the written statement with the sample of Urdu handwriting of the defendant. In this scientific period, the Expert while analyzing flow, pressure, characteristic and angle of the digit easily could render its report in negative or otherwise. Although the evidence of the Expert is not conclusive proof, but as held by the august Supreme Court in judgment reported as "Muhammad Qayyum and 2 others v. Muhammad Azeem through legal heirs and another" (PLD 1995 SC 381), the opinion of Expert is one of the modes of producing evidence and if the said report is properly proved, the same can be used as corroborative piece of evidence. By not resorting to this exercise, the plaintif f himself incurred a presumption against him.
5. In such given circumstances, the learned Revisional Court was perfect in setting aside the ex parte proceedings as well as the decree, which in fact caused no prejudice to the present petitioner rather if he has a genuine case, then has fair chance to prove it on merit. The impugned order is neither coram non judice nor ultra vires , rather made in exercise of lawful authority on the basis of available evidence, hence deserve no interference. The petition in hand being meritless is dismissed .