' The appellant in this case was the respondent's tenant occupying Flat No,6 in the building situated at Aram Bagh, Karachi at a monthly rent of Rs,130. He has been ordered to be ejected from the said premises by the learned XIIth Senior Civil Judge and Assistant Sessions Judge and Rent Controller, Karachi by his order dated 13-2-1985.
2. The application seeking ejectment of the appellant was filed by the respondent on the ground of non-payment of rent for the months of October, November, December, 1982 and January, 1983. The application was resisted by the appellant mainly on the ground that with the consent of the landlord he had incurred expenditure on repairs to the premises amounting to Rs,2,500 which the landlord had agreed in writing to adjust from the future monthly rent and consequently, no default had been committed by the respondent. It is also pertinent to point out that vide application dated 21-3-1983, after the eviction application had been filed by the respondent against the appellant, he had deposited rent with the Rent Controller through miscellaneous rent application for the months of October, November and December, 1982 and January, 1983.
3. Exhibit A/6 which purportedly contained permission by the landlord for the applicant to carry out repairs and adjust the cost thereof against future rent was tendered by the appellant in evidence, but both the handwriting and the signatures on the said exhibit were disowned by the respondent.
The learned Controller on the basis of the evidence respectively adduced by the . Parties came to a conclusion that the appellant, under the circumstances, had failed to discharge his burden and the circumstances of the case clearly indicated that default had been committed for the months of October and November, 1982 in case the appellant was given benefit of the grace period of sixty days referred to in section 15 of the Rented Premises Ordinance. The learned Controller was also of the view that the circumstances of the case militated against 'the plea raised by the tenant in his written statement that the landlord had agreed for adjustment of the cost of the repairs towards the future rent. The circumstances which militated against the said plea taken by the appellant have been enumerated in the impugned order as follows:- "It is in the cross-examination of the opponent that he has not paid the rent from October, 1982 till 2nd February 1983 which is the period of default claimed by the applicant in the present proceedings. His further cross-examination goes to show that he has not mentioned in his Miscellaneous Rent application filed by him for depositing of rent in the Court about the fixation and adjustment of rent with regard to repairs carried by him. It is also admitted by him in his cross- examination that he deposited the rent in the Court on 21-3-1983. He has further stated that he has not mentioned in his money order about cost of expenditure and repairs towards monthly rent. He has produced money order receipt which has been dated 5-3-1983 as Ex: 0/6. The opponent has also in clear terms admitted that he has not given details of repairs in his written statement but only has shown amount of repaiRs,"
4. The main contention of Mr. Asar Hussain, learned counsel for the appellant before me has been that notwithstanding the fact that the appellant did not apply to the learned Controller for reference of the disputed handwriting and signature of the respondent for opinion of the handwriting expert or that no request was made to the Court for comparison of the disputed signatures with the admitted signatures of the respondent, it was imperative for the Court to compare the disputed signatures of the respondent with his admitted signatures. Mr.Akbar Khan Ghori, learned counsel for the respondent, on the other hand, has fully supported the impugned order.
5. In Tanveer Jamshed and another v. Raja Ghulam Haider (1986 CLC 456), which is the first case relied upon by Mr. Asar Hussain, a learned Single Judge of this Court while examining the scope of section 73 of the Evidence Act which now corresponds to Article 84 of the Qanun-e-Shahadat observed as follows:- "Evidence Act recognises two direct methods of proving the handwriting of a person:
(i) By an admission of the person who wrote it.
(ii) By the evidence of some witness who saw it written. These are best methods of proof. These apart, there are three other methods of proof of opinion. They are:
(a) By the evidence of a handwriting expert (section 45).
(b) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question (section 47).
(c) Opinion formed by Court on comparison made by itself (section 73).
"All these three cognate modes of proof involve a proof of comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned documents.
' The first paragraph of section 73 provides for comparison of signature, writing or seal purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not say by whom such comparison may be made. It is clear that such comparison may be made by a handwriting expert (section 45) or by one familiar with the handwriting of the person concerned (section 47) or by the Court. A sample writing taken by the Court under the second paragraph of section 73 is in substance and reality, the same thing as admitted writing within the purview of the first paragraph of the section.
' Section 73 is, therefore, to be read as a whole in the light of section 45. Thus it is clear that a Court trying a suit or Controller trying an eviction application or holding an inquiry under Order XXI, rule 100 or section 12(2), C.P.C. Does not exceed its powers under section 73, if in the interests of justice, it directs the defendant/respondent person appearing before it, to give his sample writing to enable the same to be compared by a handwriting expert chosen or approved by the Court/Controller, because even in adopting this course, the purpose is to enable the Court/Controller before which he is ultimately put up for trial, to compare the disputed writing with his (defendant/respondent's) admitted writing, and to reach its own conclusion with the assistance of the expert.
' In the instant case, the Senior Civil Judge/Rent Controller, did not apply this test to the present case. The Senior Civil Judge did not direct the respondent to execute sample writing. The respondent in his objections stated that Annexures 'C' and 'D' are forged, fictitious and bogus but no attempt was made by him for sending the disputed documents and admitted documents to the handwriting expert. It is not apparent from the record that the admitted signature, writing was before the Senior Civil Judge except the signature of the respondent on this record. I am of the view that section 73 does not entitle the Court to assist a party to the proceedings. It entitles the Court to assist itself to a proper conclusion in the interest of justice."
' In Mst. Ummatul Waheed v. Ms. Nasira Kausar (1985 SCM R 214) the contention before the Supreme Court was that comparison of the signatures by the Court itself as a substitute for the opinion of the handwriting expert had not been approved by the superior Courts. The plea was, however, repelled by the following observations:-- "On the legal plane we find that the latest decision of this Court is contained in All Ahmad alias Ali Ahmed Mia v. The State PLD 1962 SC 102 that a Court is entitled to compare the handwriting even if there be an opinion of an expert on the subject. In S. M. Zahir v. Fazal Ali Ajmeri 1974 SCM R 490 it was held that there is no rule of law which requires examination by an expert in every case. The Court itself was held entitled to compare the handwriting and to come to the conclusion..... "
6. It may be pointed out that Article 84 of Qanun-e-Shahadat is an enabling provision leaving to the discretion of the Court to satisfy itself as to the proof of the handwriting or the signatures in case any dispute has been raised as to their genuineness. On of the modes for proving such handwriting or signatures is by reference thereof to a handwriting expert for comparison, however, the Court is also empowered to compare the disputed handwriting or the signatures with the admitted signatures and then arrive at its own findings. As has been held by the Supreme court in the case of Mst. Ummatul Waheed after referring to the case of Ali Ahmad alias All Ahmad Mia v.
The State (PLD 1962 SC 102), the Court is entitled to compare the handwriting even if there be an opinion of an expert on the subject. Such course, the Court must adopt particularly when no opinion of the expert is available before it. After all, the Court has to do complete justice between the parties. The mere fact that no request has been made to the Court to compare the disputed signature with admitted signature would not justify such failure on the part of the Court to compare the signature itself. No doubt, the circumstances referred to by the learned Controller in his order, which according to him, militated against the plea of the appellant that the cost of repairs was liable to be adjusted against future rent can be considered to arrive at a finding whether the plea taken by the tenant was correct or genuine but in the present case Exhibit A/6 had been tendered in evidence which purportedly contained permission under the signature of the respondent. The question that primarily was to be considered was whether such endorsement was made on the said document by the respondent himself. This clearly required a finding whether the handwriting or signature on Exhibit A/6 was that of the respondent. Consequently, even if no attempt was made by the respondent to refer the disputed handwriting or the signature for opinion of an expert it was incumbent on the Court to itself compare the signatures as pointed out earlier and come to its own findings on the issue. The question whether the alleged cost of repairs was to be adjusted from the rent could be conclusively determined after a finding had been given by the learned Controller regarding the genuineness of the handwriting or the signature on Exhibit A/6.
7. In the result, I allow this appeal and set aside the order passed by the learned Controller and remand the case to him for afresh decision in the light of the observations made in this judgment.