Through this writ petition, the petitioners have assailed the vires of impugned orders dated 03.12.2024 and 09.09.2024 passed by the courts below.
2. The brief facts of the case are that the petitioners filed a suit for specific performance of an agreement to sell dated 25.12.2008 against the respondents while alleging that their predecessor- in-interest had executed an agreement to sell with one Allah Nawaz Rabbani predecessor-in- interest of the respondents. After recording of evidence of both the parties, the petitioners moved an application under Article 59 of Qanun-e-Shahadat Order, 1984 for comparison of alleged signatures of deceased Allah Nawaz Rabbani (predecessor-in-interest) on the agreement to sell (Exh.P1) with those available in the records of FBR (Income Tax Returns) and NADRA related to his CNIC No.31202-8890449-5. The respondents contested the said application and the learned trial Court, after hearing the arguments of both the sides, dismissed the application filed by the petitioners.
Feeling aggrieved, the petitioners filed a Civil Revision which met the same fate. Hence, this petition.
3. Learned counsel for the petitioners contends that the courts below have failed to exercise their jurisdiction properly and the impugned orders are against the law and facts. Learned counsel for the petitioners while relying upon the case laws titled as "Hamid Qayyu m and 2 others versus Muhammad Azeem through Legal Heirs and another" (PLD 1995 S.C 381) & "Mst. Nusrat Bibi versus Muhammad Ashraf Mehr and others" (2007 YLR 41) submits that impugned orders passed by both the courts below are liable to be set aside.
4. Heard. Record perused.
5. An examination of the record discloses that the proceedings had already advanced to the stage of final arguments, subsequent to the recording of evidence from both parties. Nevertheless, the petitioners elected to file the instant application at this juncture, without offering any explanation for their failure to raise this issue at an earlier stage. The petitioners' contention is that they retain the right to move such an application at any stage of the proceedings, and that there exists no legal impediment or limitation that would preclude them from doing so. However, their contentions are misplaced, as in civil litigation, particularly in a suit for specific performance of an agreement, the petitioners bear the burden of demonstrating their good faith (bona fide). This can only be established through the petitioners' conduct and behavior before and after filing the suit. Any action taken by the petitioners that suggests they are intentionally delaying the proceedings or attempting to fill gaps in their case through the filing of applications is detrimental to their case and undermines their credibility.
Perusal of the record further discloses that the respondents had previously filed an application praying for the same relief, which was strongly contested by the petitioners. In this context, it is instructive to reproduce the prayer of the said application and reply filed by the petitioners, which states:- "In view of the above, it is respectfully prayed that while accepting this application, the signatures and thumb impressions of Allah Nawaz Rabbani, the predecessor-in-interest of applicants / defendants No.1 to 5, on the alleged agreement to sell, receipt and register of stamp vendor dated 24.05.2012 may please be comparison with his personal documents i.e. old and computerized national identity cards and passports and his applications for renewal of his license, through Punjab Forensic Science Agency, Lahore, in the interest of justice."
6. A party cannot be allowed to take a contradictory stance or position that is inconsistent with their earlier statements or actions. In the context of the Article 114 Qanun-e-Shahadat Order, 1984, estoppel can be invoked when a party has taken a particular position or made a statement that is later contradicted by their actions or subsequent statements.
In the present scenario, the petitioners initially contested the application filed by the respondents but later filed a similar application, such inconsistency of the petitioners falls under the mischief of doctrine of estoppel, which being an equitable doctrine precludes a party from taking inconsistent positions before the court. Furthermore, it is held in number of cases that one cannot be permitted to approbate and reprobate in the course of same proceedings. Reliance can be made upon the case laws titled "Shaikh Gulzar Ali & Co. Ltd. and others versus Special Judge, Special Court of Banking and another." (1991 SCMR 590), "Noor Muhammad, Lambardar versus Member (Revenue), Board of Revenue, Punjab, Lahore and others" (2003 SCMR 708) & "Overseas Pakistanis Foundation and others versus Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another"
7. The petitioners instituted the suit for specific performance of the agreement, relying on an oral agreement to sell, accompanied by an acknowledgement of the agreement. In order to succeed, the petitioners bear the burden of proving their case through robust and reliable evidence whereas opinion of handwriting experts is considered a weak form of evidence. This Court as well as the Supreme Court of Pakistan has laid down a consistent line of jurisprudence to the effect that the opinion of a handwriting expert is inherently a fragile form of evidence, necessitating corroboration with more robust and credible evidence in order to be accorded any significant weight. Guidance can be sought from the case laws reported as "Mst. Noor Elahi versus Muhammad Abbas etc."
(PLJ 2022 Lahore 118), "Mst. Saadat Sultan and others versus Muhammad Zahur Khan and others" (2006 SCMR 193) & "Qazi Abdul Ali and others versus Khawaja Aftab Ahmad" (2015 SCMR 284).
8. Considering the foregoing, the courts below have rightly disallowed the application submitted by the petitioners. However, if the learned trial Court considers it necessary, it may refer the agreement to handwriting experts for examination to its satisfaction or, alternatively, exercise its powers under Article 84 of the Qanun-e-Shahadat Order, 1984, to compare the disputed signatures with admitted signatures, in order to verify its authenticity.
9. Resultantly, instant writ petition being devoid of any force stands dismissed in limine.