1. WALI MUHAMMAD KHAN, J.---Hamid Qayyum and others, heirs of Dr. Abdul Qayyum (appellants herein), through leave of the Court has called in question the judgment, dated 23-2-1991 passed by the Lahore High Court in R.S.A. No,80/89, whereby their appeal against the judgment and decree, dated 7-12-1987 passed by the Civil Judge, Lahore decreeing the suit of Muhammad Azeem and others (respondents herein) for possession through specific performance of agreement to sell, dated 9-2-1970 and judgment, dated 18-4-1989 passed by the appellate Court dismissing their appeal, was dismissed. The leave granting order is as follows:--- "Although in this petition arising out of defendant/petitioners' side's failure against, the respondent/plaintiffs in a suit for specific performance a considerable contest is factual; we, in order to satisfy ourselves on the question of alleged forgery of disputed agreement and receipt relied upon from the respondents' side, compared the same with admitted documents. It has been found, under magnifying glass, that the petitioners' plea of forgery of their predecessor's signatures, prima facie, has force. One of the two experts also supported the plea of forgery.
2. Accordingly, this and other questions to be raised by both the sides require examination. Leave to appeal is granted."
3. ' The facts, briefly stated, are that Dr. Abdul Qayyum, predecessor-ininterest of the appellants, allegedly executed agreement to sell (Exh.P.4) in favour of Muhammad Azeem and Muhammad Saleem plaintiffs, dated 9-2-1970 in respect of his land measuring 11 Kanals 1 Marla comprised in Khasra Nos.3487, 3488 and 3489 situated in Baghbanpura, Lahore for a sum of Rs,1,54,700 out of which he received Rs,54,700 as earnest money and the balance of Rs,1,00,000 was agreed to be paid at the time of the execution of the sale-deed, which was to be executed within six months thereafter. Simultaneously with the same a receipt Exh.P.3 in token of having received the earnest money was also executed by him. Both these documents were scribed by Allah Ditta P.W.4 in the presence of Muhammad Siddiq marginal witness P.W.3 and the stamp paper had also been provided by Allah Ditta P.W. Who happened to be a stamp vendor as well and the gist of the aforesaid documents was incorporated in his register Exh.P.5 and the signature of the executant Dr. Abdul Qayyum Exh.P.5/1 and Exh.P.6/1 obtained therein. Dr. Abdul Qayyum admittedly died on 4-6- 1970 before the expiry of six months, the time fixed for the specific performance of the agreement.
4. The agreement to sell recites the delivery of possession to the plaintiffs/respondents on the spot.
5. The appellants started construction of boundary wall around the disputed land whereupon the plaintiffs/respondents issued them telegram to desist from taking the law into their own hands and not to take forcible possession of land from them and soon thereafter filed the present suit for possession through specific performance of the agreement to sell.
6. ' The defendants/appellants contested the suit and in their written statement not only denied the execution of the documents relied upon by the plaintiffs/respondents but dubbed them as forged, fabricated, fraudulent, without consideration and not enforcible through the law. They also denied the delivery of possession to the plaintiffs/respondents under the agreement to sell and also added that the sale consideration mentioned in the impugned agreement to sell was grossly inadequate. Additionally they averred that on 9-2-1970 Dr. Abdul Qayyum was seriously ill and could not move from his bed. The plaintiffs/respondents had annexed photostat copies of the agreement to sell and the receipt alongwith the plaint and also submitted an application for the grant of ad interim injunction to restrain the defendants/appellants from dispossessing them.
7. During the course of arguments on the application for ad interim injunction the learned trial Court obtained the original documents from the plaintiffs and make them part of the original judicial record alongwith two original registered sale-deeds, dated 11-11-1969 executed by Dr. Abdul Qayyum in favour of Mian Abdul Majeed son of Muhammad Azeem plaintiff and Muhammad Afzal son of Ch. Muhammad Yousuf of Baghbanpura. The learned trial Court on the cursory comparison of the signatures of the executant on the impugned documents and his admitted signatures on the registered sale-deeds, prima facie, opined that the signatures of Dr. Abdul Qayyum on all the documents resemble each other and disposed of the injunction application. However, on the complaint filed by Hamid Qayyum defendant No,1 that the plaintiffs had committed forgery and were liable under the penal law, a case was registered against them and the Investigating Officer, with the permission of the Court, took away the original documents referred to above for obtaining expert opinion and later on returned them to the Court. The agreement to sell was subsequently removed by somebody from the Court record which could not be traced, resulting in permission to the plaintiffs/respondents to lead secondary evidence in the case.
8. ' Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Court, vide its judgment and decree dated 7-12-1987, believed in the proper and valid execution of agreement to sell and the receipt dated 9-2-1970 and passed decree for possession through specific performance of agreement to sell directing the plaintiffs to deposit Rs,1,00,000 the balance of sale consideration in Court within a period of one month upon which the defendants shall execute a regular sale-deed in favour of the plaintiffs and on their failing to do so the plaintiffs shall get a sale-deed executed through Court in accordance with law. Not content with the same the defendants/appellants preferred appeal before the Additional District Judge, Lahore who also concurred with the trial Court and dismissed the appeal vide judgment and decree dated 18-4- 1989. The defendants/appellants' regular second appeal also could not succeed vide the impugned judgment, dated 23-2-1991. Hence the instant appeal through leave of the Court.
9. ' We have heard Mr. Aabid Hassan Minto, Advocate for the appellants; Sh. Zia Ullah, Advocate, for the respondents; and have perused the record of the case with their valuable assistance.
10. ' The learned counsel for the appellants forcefully argued that the agreement to sell Exh.P.4, receipt Exh.P.3 and the entries in the register Exh.P.5 purporting to be on behalf of Dr. Abdul Qayyum, predecessor-ininterest of the appellants, and bearing his signature are all forged, fabricated and not enforcible in law. In support of his version he relied on the statement of Muhammad Din D.W.2 Handwriting Expert of the Police Department. According to him, the signatures on the questioned documents were not that of the executant of registered sale-deeds dated 11-11-1969 Exhs.P.2 and P.1 admittedly executed by Dr. Abdul Qayyum, predecessor-in-interest of the appellants. He doubted the integrity of prosecution witnesses, namely, Iftikharud-Din, P.W.1, Muhammad Siddiq, P.W.3 and Allah. Ditta P.W.4, who, according to him, were birds of the same feather and were involved in forging documents and facing criminal and civil cases of grabbing trust property through foul means and should not have been relied upon in the present case by the lower forums. As regards Zaka A. Malik, Handwriting Expert P.W.2, he submitted that his statement was not taken into consideration by the trial Court and the higher two forums legally erred in placing reliance on his statement in corroboration of the version given by the aforementioned witnesses. The learned counsel for the respondents, on the other hand, reiterated the grounds enumerated in the judgments of the lower three forums.
11. ' We have anxiously pondered over the arguments of the learned counsel for the parties. The pivotal question in the case in hand is whether Dr. Abdul Qayyum who was a well-reputed and highly educated person entered into agreement to sell the suit property in favour of the plaintiffs/respondents and executed the documents mentioned above and received the earnest money of Rs,54,700 or not. On this question there is concurrent findings of all the three Courts below supported by substantial evidence and this Court in the normal course would have declined to reopen the matter but since valuable property was involved and there being wild allegation of forgery, leave was granted for re-examination and reappraisal of the evidence produced in the case.
12. ' Under section 67 of the since repealed Evidence Act corresponding to Article 78 of the Qanun-e- Shahadat, 1984 the plaintiffs were required to prove the signatures of the executant; namely, Dr. Abdul Qayyum on the documents Exhs. P.4 and P.3 and the entries connected therewith in the register Exh.P.5 maintained by the, scribe Allah Ditta P.W.4. To achieve this end the persons available were the attesting witnesses and the scribe of the deeds. Iftikhar-udDin, P.W.1 is admittedly a property dealer and according to his version on oath in Court he negotiated the bargain in respect of the suit property between Dr. Abdul Qayyum and the plaintiffs/respondents.
13. Earlier too, he had acted as a dealer between the parties in the completion of the sale transaction vide Exhs.P.1 and P.2 as is apparent from his signature as attesting witness on the said registered sale-deeds. The appellants themselves acquiesced in the execution and registration of the documents because at their instance the disputed documents were sent by the police for comparison of the signatures of their predecessor with his signatures on Exhs.P.1 and P.2 by Muhammad Din Police Handwriting Expert who was contradicted by P.W.2. Obviously they cannot deny the role played by Iftikhar-ud-Din P.W.1 in securing the execution, attestation and registration of sale deeds Exhs.P.1 and P.2 and his acquaintance with their predecessor Dr. Abdul Qayyum.
14. These deeds were executed on 11-11-1969 i,e, about three months prior to the execution of the impugned documents and there is no suggestion whatsoever that during this period their relations somehow or the other became strained to the extent that Iftikhar-udDin would go to the extent of being a privy to the forging of the signatures of Dr. Abdul Qayyum in order to deprive him of valuable property for no personal gain and for the benefit of the plaintiffs with whom he had no relationship whatsoever. His dealing in the affair is evident from the fact that the stamp paper for the execution of the agreement to sell was purchased by him as per entry of the register maintained for the purpose by the stamp vendor and his signature appear therein. In fact if the scribe and the witnesses had joined hands to commit forgery there is no reason why in this register too the signature of Dr. Abdul Qayyum was not forged particularly when this entry is also in the hand of Allah Ditta P.W.4. Muhammad Siddiq P.W.3 deposed on oath that in his presence the documents in question were scribed at the instance of Dr. Abdul Qayyum and he signed them in his presence. No doubt, he was a Patwari and on this account he may not be very well reputed as other citizens but so long as his interest, one way or the other, is not established his deposition on oath could not be brushed aside. Nothing has been brought on the record to show that he had any grudge or ill-will with Dr. Abdul Qayyum or his heirs, the appellants herein. It is also not alleged, muchless proved, on the record that he is in any way interested in favour of the plaintiffs/respondents. He is, no doubt, related to Allah Ditta P.W.4 but since Allah Ditta too has no enmity with the appellants or relationship/friendship with the plaintiffs/respondents, the inter se relationship between the witnesses is of no help to the appellants. Allah Ditta P.W.4 is also a stamp vendor and he issued the stamp paper to Iftikhar-ud-Din for the execution of the agreement to sell by Dr. Abdul Qayyum as per entry in the vendor's register brought on the record. He scribed the agreement to sell Exh.P.4 and receipt Exh.P.3 on 9-2-1970 at the instance of the executant and obtained his signature thereon. He also entered gist of the contents of the deeds in the register Exh.P.5 and obtained signatures of Dr. Abdul Qayyum thereon marked as Exh.P.5/1 and Exh.P.6/1. We have gone through the evidence of these witnesses and the documents minutely and are not persuaded to doubt their integrity so far as their depositions are concerned.
15. ' In the presence of the direct evidence produced by them the plaintiffs were not required to seek the opinion of an expert but since during the investigation of criminal case against them an adverse opinion had come on the record, they obtained the opinion of Zaka A. Malik, Handwriting Expert, Exh.P.7. He was examined in Court as P.W.2 in which he proved his opinion and stated on oath that the impugned documents bore the signature of the executant of registered sale-deeds Exhs.P.1 and P.2. He gave detailed reasons in support of his conclusions in his report Exh.P.7 as well as his statement in Court. Taking advantage of his detailed reasons with regard to each alphabet of the signatures in question, as per the judgment of this Court in case Ali Ahmad v. The State PLD 1962 SC 102 also made an exercise of comparison of the signatures of Dr. Abdul Qayyum with his admitted signatures on Exhs.P.1 and P.2 with the help of a magnifying glass and found the reasonings advanced by the expert quite plausible and convincing. On the other hand, Muhammad Din D.W.2, in his report did not advance reasons in support of his conclusions.
16. Consequently, the opinion of Zaka A. Malik deserved preference over the opinion of Muhammad Din, D.W.2 moreso when the former is in accord with the direct evidence.
17. ' The upshot of the above discussion is that the concurrent finding of fact of the lower three forums regarding the genuineness of the agreement to sell Exh.P.4, receipt Exh.P.3 and register Exh.P.5 do not suffer from any legal infirmity, misreading or non-reading of evidence. Accordingly, this appeal is dismissed with no order as to costs.
18. (Sd.)
19. ' WALI MUHAMMAD KHAN, J ' MUHAMMAD AFZAL ZULLAH, regret that I am unable to agree with the proposed judgment of my learned brother. There are visible differences in the two signatures.
20. (Sd.)
21. ' MUHAMMAD AFZAL ZULLAH, C.J.
22. ' SAIDUZZAMAN SIDDIQUI, J.---The above appeal has been placed before me as a result of difference of opinion between the two learned members of a Bench of this Court consisting of Muhammad Afzal Zullah, C.J. And Wali Muhammad Khan, J. (as they then were) for third opinion in accordance with Order XI of the Supreme Court Rules, 1980. The leave granting order in the above appeal reads as follows:- "Although in this petition arising out of defendant/petitioners' sides failure against the respondent/plaintiffs in a suit for specific performance, a considerable contest is factual; we, in order to satisfy ourselves on the question of alleged forgery of disputed agreement and receipt relied upon from the respondents' side, compared the same with admitted documents. It has been found, under magnifying glass, that the petitioners' plea on forgery of their predecessor's signatures, prima facie, has force. One of the two experts also supported the plea of forgery.
23. Accordingly, this and other questions to be raised by both the sides require examination. Leave to appeal is granted.
24. ' Security Rs,10,000.
25. ' Execution stayed. Alienation in any form whatsoever restrained."
26. ' The relevant facts of the case are that predecessor-in-interest of respondent No,1(i) to (x) namely, Muhammad Azeem and respondent No,2 Muhammad Saleem (hereinafter to be referred as 'the vendees') entered into an agreement of sale with the predecessor-in-interest of appellants (hereinafter to be referred as 'the vendor' only) on 9-2-1970 to purchase a piece of land measuring 11 Kanals and 1 Marla comprising Khasra Nos. 3487, 3488 and 3489 situated in Baghbanpura, Lahore (hereinafter to be referred as 'the suit land') for a sum of Rs,1,54,700. The vendees paid a sum of Rs,54,700 towards the part payment of sale consideration to the vendor and the balance amount of sale consideration was agreed to be paid at the time of execution of sale-deed which in terms of the agreement of sale was to be executed within 6 months from the date of execution of agreement of sale. The vendor at the time of execution of agreement of sale acknowledged the part consideration of Rs,54,700 through a separate receipt. It appears that before the sale could be completed in favour of vendees, the vendor died on 4-6-1970. It further appears that the legal heirs of the vendor denied execution of the agreement of sale by the vendor in respect of the suit land and attempted to raise construction thereon which led to the filing of the suit for specific performance before the Civil Judge, Lahore, by the vendees against the appellants. Alongwith the suit, the vendees also filed an application seeking a temporary injunction to restrain the appellants from interfering with the possession of the vendees over the suit land, or selling and transferring the same or raising any construction thereon. The application for grant of temporary injunction was hotly contested. The appellants denied execution of agreement of sale and the receipt by the vendor and described these documents as forgeries and fabrications. The trial Court during the course of hearing of application for grant of temporary injunction directed the vendees to produce in Court the two original registered sale-deeds, dated 4-11-1969 and 25-1-1969 admittedly executed by the vendor in favour of the vendees. The trial Court after comparing the admitted signatures of the vendor on the said two sale-deeds with his disputed signatures on the agreement of sale and the receipt, observed that there were similarities in the characteristics of the admitted and disputed signatures although they do not tally with each other. The trial Court accordingly granted the application and restrained the appellants from selling or alienating the suit land in any manner till the disposal of the suit. After filing of the written statement by the appellants in the suit the trial Court initially framed the following issues: "(1) Whether the plaintiffs are entitled to get the agreement to sell, dated 9th of February, 1970, specifically performed? OPP
(2) Whether the suit is not maintainable and is liable to be dismissed in view of preliminary objections Nos.1, 2, 5 and 6 of the written statement? OPD
(3) Whether the plaint does not disclose any cause of action? OPD
(4) Whether the plaintiffs have not come to the Court with clean hands? If so, to what effect? OPD
(5) Relief."
27. ' Subsequently, on an application filed by the appellants, the trial Court re-framed issue No,1 as follows:--- "(1) Whether the agreement and receipt dated 9-2-1970 were executed by late Dr. Abdul Qayyum?
28. OPP 1-A. If issue No,1 is decided in the affirmative whether the plaintiffs are entitled to get the agreement, dated 9-2-1970, specifically performed? OPP."
29. ' The trial Court after recording evidence of the parties on the above issues and hearing their counsel decreed the suit on condition of deposit of rupees one lac by the vendees within a period of one month from the date of the decree. The judgment and decree of the trial Court was affirmed on appeal by the first appellate Court and the Regular Second Appeal (R.SA.) filed by the appellants before the High Court also met the same fate. Leave was granted by this Court against the judgment of the High Court as aforesaid. The appeal was later heard by a learned Bench of this Court consisting of Muhammad Afzal Zullah, C.J. And Wali Muhammad Khan, J. (as they then were).
30. Justice Wali Muhammad Khan, keeping in view the scope of leave granting order reviewed the entire evidence recorded in the case, besides comparing the signatures of the vendor on the two disputed documents with his admitted signatures, and came to the conclusion that the concurrent findings recorded by the Courts below on the issue of execution of agreement of sale and receipt by the vendor in favour of vendees, did not suffer from infirmity and accordingly dismissed the appeal. The learned Chief Justice (as he then was), however, did not agree with the opinion of Wall Muhammad Khan, J. (as he then was) and recorded his dissent as follows:--- "I regret that I am unable to agree with the proposed judgment of my learned brother. There are visible differences in the two signatures."
31. ' I have heard the learned counsel for the parties at length. Mr. Abid Hassan Minto, the learned counsel for the appellants has raised two-fold contentions before me. It is firstly, contended by the learned counsel that the Courts below were not justified in discarding the evidence of Handwriting Expert Muhammad Din (D.W.2) produced by the appellants. It is contended by the learned counsel that Muhammad Din (D.W.2) was a neutral and independent witness, being the official Handwriting Expert of the Police Department who had examined the signatures of the vendor on the disputed documents at the request of Baghbanpura Police Station, and as such his evidence carried more credibility and weight as compared to the opinion of Zaka A. Malik (P.W.2) who was engaged by the vendees, and therefore, his opinion had a natural bias in favour of the party who had engaged him.
32. It is also contended by Mr. Abid Hassan Minto, that the Courts below failed to take into consideration that Muhammad Din (D.W.2) had the opportunity of examining the original agreement of sale (Exh.P.4) which was referred to him while Zaka A. Malik (P.W.2) was referred only the photostat copy of the sale agreement on account of loss of the original document from the record of the Court, and therefore, for this reason too, the opinion of Muhammad Din should have been preferred as against the opinion of Zaka A. Malik. The second contention of the learned counsel for the appellants is, that the vendor at the time when he allegedly executed the disputed documents, was seriously ill and was not in a position even to walk a little distance. Therefore, it was highly improbable that he would have gone to the shop of scribe and executed the document in the manner alleged by the vendees. This aspect of the case, according to learned counsel, was not properly appreciated by the Courts below. The learned counsel contended that the appellants wanted to summon the doctors, who treated the vendor, to prove his serious illness at the relevant time but this request was disallowed by the trial Court arbitrarily. The learned counsel, accordingly, urged that in order to do complete justice in the case, the appellants may be allowed the opportunity to produce the evidence of doctors before this Court or the case may be remanded to allow the appellants to avail this opportunity before the Courts below. The learned counsel for the respondents on the other hand supported the judgment of the High Court and contended that the three Courts below concurrently held that the documents namely, the agreement to sell, the receipt showing payment of part consideration, the copies of the agreement of sale and the receipt contained in the register maintained by the scribe, bore the signatures of the vendor. In these circumstances, it is argued by the learned counsel for the respondents, that this Court would not disturb the concurrent findings of fact recorded by three Courts below unless the findings are shown to have been arrived at on account of misreading of evidence or perverse appreciation of the evidence on record. It is lastly, contended by the learned counsel for the respondents that the concurrent findings on issue of facts recorded by the Courts below have also been upheld in the detailed opinion recorded by one of the learned Judges of the Bench of this Court (Wali Muhammad Khan, J.), after reviewing the entire evidence on record, and therefore, no ground exists to disturb these findings. After hearing the learned counsel for the parties, I find no merit in this appeal.
33. ' The main issue requiring determination in the case is whether the documents namely, the agreement to sell (Exh.P.4), the receipt showing payment of part of sale consideration (Exh.P.3), the copies of the above agreement to sell and receipt appearing on the register of scribe (Exhs.5 and 6 respectively), bore the signatures of the vendor. The best way of proving the handwriting or signature of a person on a document, is to call that person in evidence to prove that much of the writing which is in his hand, or his signatures on the document. In case the person who has written the document or signed it cannot be found, or denies his writing or signatures on the document, the same can be proved by calling a person who saw him writing or signing the document. The handwriting or signatures of that person can also be proved by calling a person who is conversant with his handwriting or signatures. If the writing or signature is on a document which is by law required to be attested, then the execution and signature on the document can be proved only by calling in evidence the attesting witnesses of the document. However, if such document (not being a will) is registered in accordance with the provisions of Registration Act, it will not be necessary to call the attesting witnesses to prove the execution of the document unless its execution is specifically denied by the person who purports to have signed or executed it. If the attesting witnesses of the document cannot be found or are dead or deny or do not recollect the execution of the document, its execution can be proved by other evidence. In order to ascertain, whether a document is written, signed or executed by a person, the Court may also compare the disputed writing or signatures of that person with his admitted writing or signatures on any other document, though such document may not have been produced in evidence before the Court. The Court may also call in aid the opinion of an Handwriting Expert to ascertain the proof of handwriting or signature of a person on a disputed document. In the present case, the signatures on the agreement to sell and the receipt showing payment of part consideration, were denied by the legal heirs of the vendor (the vendor having died in the meantime). In order to prove execution of these documents the vendees/respondents examined the scribe of these documents, the two attesting witnesses and a Handwriting Expert who after comparing the disputed signatures of the vendor with his admitted signature opined that the disputed documents were signed by the vendor. In addition to above evidence, the trial Court also compared the disputed signatures of the vendor on the agreement to sell and the receipt with his admitted signatures and came to the conclusion that there were similarities in the general characteristics of the disputed and admitted signatures of the vendor. The comparison of the signatures of the vendor on the disputed documents with his admitted signatures was also undertaken by one of the learned Judges of this Court (Wali Muhammad Khan, J.) at the time of hearing of this appeal with the help of magnifying glass and the learned Judge after comparison as aforesaid came to the conclusion that the opinion expressed by the Handwriting Expert Zaka A. Malik, examined by the vendeesrespondents, was quite plausible and convincing. As against the above overwhelming evidence and material in support of execution of the disputed documents by the vendor, the appellants produced one of the legal heirs of the vendor, who denied the signatures of the vendor on the disputed document. The appellants also produced in evidence, Handwriting Expert Muhammad Din, who opined that the signatures on the disputed documents were not that of the vendor. The Courts below rightly refused to rely on the evidence of Muhammad Din (D.W.2) as this witness in his opinion furnished before the Court did not disclose any reason for his conclusion that the disputed documents -did not bear the signatures of the vendor. With regard to the observations of learned Chief Justice in his dissenting opinion, reproduced earlier in this judgment, that there were "visible difference in the two signatures", I may respectfully state here that these observations of the Hon'ble Chief Justice were based on a visual examination of the two signatures. The learned Chief Justice did not appear to have examined the general characteristics of the two signatures with the help of a magnifying glass before recording his above observations. The visual test used by the learned Chief Justice in my humble opinion was not at all a safer course to follow. I may also respectfully point out here that natural variations in the signatures of a person may appear due to varieties of reasons, such as passage of time, age, infirmity and illness etc. A person may also attempt to disguise his signature to defeat a transaction. It is for these reasons that the experts lay more stress on similarities of the general characteristic and features of the signature and writing of a person than its visible dissimilarities. Examined in the light of preceding discussion, I find that the preponderance of the evidence in the case clearly supported the conclusion that the agreement of sale (Exh.P.4), the receipt (Exh.P.3) and copies of the agreement of sale and the receipt kept by the scribe on a register (Exhs.P.5 and P.6) bore the signatures of the vendor.
34. ' It is true that the Handwriting Expert examined by the vendees/respondents did not get the opportunity of examining the original agreement of sale (Exh.P.4) and he examined only the photostat copy thereof, as the original was lost from the record of the Court, but this fact made little difference in the circumstances of the present case. The vendees/respondents, in their.
35. Evidence before the trial Court, besides producing the original agreement of sale (Exh.P.4) also produced a receipt showing payment of part consideration (Exh.P.3) which was also allegedly signed by the vendor. The vendees/respondents also produced in Court through the scribe of the agreement of sale, the original register maintained by him which allegedly contained the copies of the agreement of sale and the receipt and which were also allegedly signed by vendor. The Handwriting Expert Zaka A. Malik (P.W.2) besides examining the photostat copy of agreement of sale also examined the original signatures of vendor on the receipt (Exh.P.3) and the signatures of vendor on the copies of agreement of sale and the receipt (Exh.P.5/1 and Exh.P.6/1). The two documents Exhs.P.5 and P.6 examined by Zaka A. Malik were never sent to the Handwriting Expert Muhammad Din examined by the appellants. It may also be mentioned here that Hamid Qayyum, appellant No,1, examined on behalf of appellants in the case, in his cross-examination admitted that on the application of the appellants permission was given by the trial Court for examination of the document by another Handwriting Expert Mr. Noman and that the documents were in fact examined by him. But this Handwriting Expert was neither produced before the Court nor the witness was able to explain the reasons for non-examination of this Handwriting Expert.
36. ' The next contention of the learned counsel for the appellants is that the vendor was a sick person and at the relevant time, he was not in a position even to walk and as such it was highly improbable that he would have gone to the shop of scribe and executed, the agreement of sale as alleged by the vendees 'respondents. In this connection, it may be stated that firstly, no such plea was raised by the appellants in their reply to the plaintiffs/respondents' application under Order XXXIX, Rules 1 and 2, C.P.C. Before the trial Court. Secondly, the application for summoning the doctor was made after close of the entire evidence in the case on 3-11-1986 which was rejected by the trial Court and a revision filed against the order of the trial Court was also dismissed on merits on 8-2-1987. In the first appeal filed against the judgment and decree of the trial Court, no such ground was raised and no application was made seeking permission of the first appellate Court to produce evidence of doctor under Order 41, Rule 27, C.P.C. However, the appellants made a request before the High Court during the pendency of their second appeal which was not accepted. Here, in this Court also, the appellants filed an application for permission to examine additional evidence in support of the contention that the deceased vendor at the relevant time was not in a fit state of health and, therefore, he could not have possibly gone to the shop of the scribe and executed the document in the manner suggested by respondents/vendees. I have considered the request of appellants for production of evidence of doctors in support of their above plea but I find neither any justifiable ground to allow this request nor in my opinion any useful purpose could be served by allowing production of this additional evidence in the case at this stage. It is not disputed by the learned counsel for the appellants that three months prior to the execution of the agreement of sale, the vendor had executed a registered sale-deed in favour of the vendees on 14-11-1969. It is also not disputed that this document was executed by the vendor before the Registrar. It is nobody's case that at the time of execution of sale deed before the Registrar on 14-11-1969, the vendor was not keeping good health or was not in a position to walk or undertake his daily routine of life. Hamid Qayyum (D.W.4), examined in the case, in his evidence stated before the Court that during the year 1969-70 the vendor was seriously ill and he was suffering from Emphysema and Prostrate-glands. It is not specifically stated by this witness or by any other witness examined in the case that in February 1970 when the agreement was executed the appellants' predecessor's condition was such that he was not able to move about. The vendor was admittedly in his advanced age and even if it is assumed that he was suffering from Emphysema and Prostrate- glands, it did not necessarily follow that he was unable to move about or perform his ordinary pursuit of life. The fact that three months prior to the execution of disputed agreement of sale, the vendor himself had gone to the office of Registrar and executed a registered sale-deed in favour of the vendee would show that the illness of the vendor was not of such a serious nature that he was unable to move about or perform his daily routine of life. The medical certificate produced by the appellants in support of their above plea and which they wanted to prove by summoning the doctor is dated 27-2-1986. According to this certificate the vendor remained admitted in the hospital from 12-12-1969 to 20-12-1969 and he was again re-admitted in the hospital on 2nd June 1970. This certificate makes no mention regarding illness of vendor between the period from 20-12- 1969 to June, 1970. Therefore, it cannot be said on the basis of this medical certificate that the vendor was not in fit state of health to execute the sale agreement, which was executed on 27-2- 1970. As against this, there is abundant evidence on record in the form of statements of the scribe, the marginal witness and the vendees, that the vendor himself came to the shop of scribe and executed/signed the documents (Exhs. P.3, P.4, P.5 and P.6). I am, therefore, of the view that no ground for interference with the impugned judgment of High Court is made out. The appeal is, accordingly, dismissed. However, in the circumstances of the case, I will make no order as to costs.
37. (Sd.)
38. SAIDUZZAMAN SIDDIQUI, J.