' The appellant has filed this 1st Appeal under section 96 read with Order XLI, C.P.C., whereby he has called in question the judgment and decree, dated 7-9-1989 passed by the learned IInd Senior Civil Judge, Karachi-Central, dismissing his Suit No,1338/88 (old) and No,862/88 (new).
2. Briefly stated, the appellant's daughter, Nusrat Khanam, got married to the respondent and sometime back the respondent divorced her. The respondent is working as Senior Assistant Clerk in the State Bank of Pakistan. It is averred by the appellant that in order to maintain good relation with the respondent he purchased for him a plot of land bearing No,R-1171/15-A 4, Baffar Zone, North Karachi out of his own funds in the Responent's name for a sum of Rs,62,000 out of which amount the respondent returned Rs,60,000 to him subsequently. The respondent wanted the appellant to construct the house on the said plot, but on account of financial hardship, he had to again request the appellant for monetary help and personal supervision. He gave his solemn promise to the appellant to refund the money back. In short, the appellant carried out the construction work on the said plot and incurred expenses. On 27-5-1984 the respondent executed a receipt for a sum of Rs,51,317 in favour of the appellant which the respondent agreed to pay in 24 instalments.
Subsequently in order to complete construction the appellant incurred another sum of Rs,48,183.
The appellant this time also demanded receipt. From the respondent, but the respondent kept him on false promises. Thus a total sum of Rs,99,500 was due and payable by the respondent to him.
3. The respondent in his written statement has denied ever obtaining any loan from the appellant or that the appellant had ever invested his own money in purchase of the plot or in the construction of the plot. According to him, he had obtained loan from the bank. The alleged receipt is a forged document.
4. On the pleadings of the parties, the following issues were framed: "(1) Whether the suit is not maintainable?
(2) Whether the plaintiff advanced a sum of Rs,62,000 as loan to the defendant for the purchase of Plot No,R-1171/15-A 4 Buffer Zone, North Karachi and the defendant returned a sum of Rs,60,000 to the plaintiff after obtaining loan from the State Bank of Pakistan?
(3) Whether the plaintiff constructed the house in question out of his own funds by Rending a sum of Rs,99,500 and the defendant executed a receipt as an undertaking for the refund of Rs,51,317 in favour of the plaintiff ?
(4) Whether the plaintiff is entitled to recover the amount of Rs,99,500 from the defendant, as claimed in the plaint ?
(5) Whether the defendant has purchased the abovesaid plot and raised constructions thereon out of his own resources, with the help of his brother and friends ?
(6) Whether the plaintiff is entitled to the relief claimed ?
(7) What should the Decree be ?"
5. The plaintiff has examined himself as P.W.1. He has also produced the photo copy of Nikahnama of marriage with the defendant as Ex.P/2, receipt dated 27-8-1984 of Rs,51,317 as Ex.P/3, the receipt dated 15-10-1984 as Ex. P/4, the receipt dated 3-10-1984 vide Rs,12,074 as Ex.P/5, the receipt dated 2-8-1984 for Rs,9,500 as Ex. P/6, the receipt dated 2-10-1984 for Rs,4,080 as Ex.P/7, receipt dated 17- 7-1984 for Rs,5,500 as Ex.P/8, photo copy of dowry articles as Ex.P/9, photo copy of application addressed to the Chairman Punchayat Committee as Ex.P/10, photo copy of application addressed by him to the S.D.M. As Ex.10/A and one Misbahul Islam, Assistant Accounts Officer, State Bank of Pakistan has also been examined on behalf of the plaintiff as P.W.2 vide Ex.P/11. He has also produced photo copy of certificate dated 1-10-1983 as Ex.P/12, photo copy of his certificate dated 26-11-1983 as Ex.P/13 and photo copy of application dated 5th November, 1983 addressed by the defendant to Director, Accounts Department State Bank of Pakistan as Ex.P/14. Muhammad Ashfaq has been examined as P.W. 3 vide Ex.P/15 and Muhammad Farooq vide Ex.P/16.
6. The defendant has been examined as D.W.1. He has also produced photo copy of letter dated 23- 9-1986 addressed to Mst.Nusrat Khanum as Ex.D/2, photo copy of the decision of the Area Councillor as Ex.D/3, postal acknowledgment as Ex.D/4 and Ex.D/5, envelope as Ex.D/6, photo copy of schedule as Ex.D/7, photo copy of written statement filed by the defendant in Suit No,1678/86 as Ex.D/8, certified copy of his statement recorded in family Suit No,1137/86 as Ex.D/9, M/s.Shakir Hussain and Syed Zulqur-Nain have also been examined as D.W.2 and D.W.3.
7. Issue No,1 was not pressed by the respondent and, therefore, this issue was dropped. Issue No,2 had no bearing on the relief claimed by the appellant as out of the alleged Rs,62,000 advanced by the appellant to the respondent Rs,60,000 was returned by him leaving a balance of Rs,2,000 payable by the respondent to the appellant, which amount was not claimed by the appellant in the suit. This issue was, however, replied in affirmative by the learned Senior Civil Judge. So far as Issue No,5 is concerned, it is split into two parts. The first being, whether the respondent had purchased the above plot and the other, whether he raised construction thereon out of his own resources, both of which are covered under Issue No,3. Issues Nos.3 and 4 involve the dispute between the parties and were taken up discussed together and decided against the appellant.
8. The appellant has claimed Rs,51,317 and Rs,48,183 respectively from the respondent. The former claim is based upon Ex.P/3 being a receipt alleged to have been executed by the respondent with Muhammad Fazil and Muhammad Ashfaq as witnesses. The contents of the receipt are typed out except the amount of Rs,51,317 which is found in figure as well as in words. According to the deposition of appellant, the respondent had signed Ex.P/3 at latter's residence and there was no other person except the appellant and respondents there. The learned Senior Civil Judge has taken note of denial of execution of Ex.P/3 by respondent and the fact that none of the attesting witnesses were produced by the appellant. It is also observed by him that in view of the fact that the respondent had denied his signature on Ex.P/3, the appellant could have moved to the Court to refer the disputed signature to a handwriting expert. In view of these reasons, the learned Senior Civil Judge came to the conclusion that the appellant had failed to establish his claim with regard to the said Rs,51,317.
9. It is pertinent to note that the signatures of the respondent appear on a number of documents which fact had been admitted by him in his evidence. The respondent among others has admitted his signatures on vakalatnama, nikahnama (Ex.P/2), joint certificate from appellant and respondent (Ex.P/12), another certificate from appellant (Ex.P/13), letter from respondent, to State Bank of Pakistan (Ex.P/14) and copy of letter from respondent to appellant's daughter and his wife (Ex.D/2). There is no controversy that in case there is an issue or dispute as to handwriting or signature of a person, a Court of law can evaluate the evidence produced by the parties and can form its own opinion on the basis of material before it.Indeed the opinion of a handwriting expert if produced can also be taken into, consideration but his opinion is not binding on the Court. No duty is cast upon a party to move to the Court to refer such a matter to a handwriting expert although at times it may be advisable. Similarly no adverse presumption can be attributed against a party not applying for it. In the present case, however, the learned Judge simply failed to apply his mind in spite of admission made by the respondent that a number of documents on record bear his signatures. He certainly was in a position to form his own opinion on the basis of material before him without recourse to handwriting expert. I have looked into the signatures of the respondent on the documents before me and I am of the view that the signature as appearing on Ex.P/3 is not different from his signatures on other documents as admitted by him. There also appears to be some misreading/misrecording of the name of Muhammad Farooq, who in fact is Muhammad Fazil as he categorically states that he was one of the witnesses to Ex.P/3. Apart from this the respondent has produced D/3 being the Faisla of the Punchayat Committee (Councillor) stating that the respondent should try to pay Rs,52,000 only to his father-in-law (appellant) which were given by the father-in-law in connection (paper torn). In P/10 being a letter dated 10-3-1986 from the respondent to the Councillor it is stated that "both my father-in-law and my mother-in-law have repeatedly told me that I have been purchased by them." The appellant has also produced Ex.P/11, being a letter dated 9-3-1986 sent by him to S.H.O. Of the area stating that he had advanced money to the respondent for construction of the house. These documents, namely, D/3, P/10 and P/11 have remained unrebutted and so also his statement in this regard.
10. It will be worthwhile to examine here the credibility of the evidence of respondent. In his written statement he has totally denied that the appellant had provided Rs,62,000 for purchase of plot by stating that he had obtained amount for the purchase of open plot from his brothers and not anybody else. He has not produced any evidence in support of his contention. He has merely stated that he obtained Rs,60,000 and Rs,15,000 respectively as House Building loan from the State Bank of Pakistan where he has been serving. He has not cross-examined or called in question at any stage the deposition of P.W.2 Misbahul Islam a Senior Assistant working in State Bank of Pakistan who in his examination-in-chief has stated that the respondent at the time of applying the loan produced a certificate that the appellant had advanced a loan of Rs,62,000 to him or after grant of loan he returned Rs,60,000. This witness has produced two certificates Ex.P/12 and Ex.P/13 the former bearing signatures of appellant and respondent, the latter bearing the appellant's signatures and also Ex.P/14 a letter from the respondent to State Bank of Pakistan. All these documents have remained unchallenged and go on to show that the respondent's stand that he had obtained loan from his brother and not from anybody else was baseless, and false and no credibility can be attached to it.
' In view of what is discussed above I am of the view that the appellant has been able to establish his claim for Rs,51,137 against the respondent.
Now adverting to the other claim of Rs,48,183 made by the appellant, it is claimed on the basis of Ex.P/4 to P/8 being receipts issued by various persons in respect of labour charges, material supplied etc. None of whom have been examined by the appellant as has been rightly observed by the learned Senior Civil Judge. It was further observed by him that the appellant has not examined mason, labour or any other workmen who were allegedly engaged by him for construction of the respondent's house. I fully agree with him that the plaintiff has D. Failed to establish his claim in this regard.
' Resultantly, the appeal is partly allowed. The appellant is entitled to a decree for Rs,51,317 against the respondent together with interest at the rate of 14% per annum from the date of the, suit till the date of payment and also proportionate cost.