1. The case of the plaintiff Habib Bank Ltd. Is that on 23-12-1x72 it advanced a loan of Rs. 1,10,000 to Ghazanfarullah Khan, sole Proprietor of Khalid Brothers, carrying on business at Central Bus Stand, Sargodha, on the security of the promissory note executed by Ghazanfarullah and on the guarantee of defendant No. 2 allegedly executed by him on the same day. Out of the amount of Rs.
2. 1,10,000 defendant No. 1 paid 7 instalments of Rs. 4,000 each and after giving the adjustment for the same the plaintiff has brought the present suit for recovery of a sum of Rs. 97,909.55, inclusive of interest upto June 1974.
3. Defendant No. 1 applied for leave to defend the suit but my brother Fakhruddin, J. By order dated 4- 8-1975 refused the leave so far the defendant No. 1 Was concerned as no triable issue was issued and decreed the suit against him as prayed for. However, subsequently, on 23-2-1976 my brother Zaffar Hussain Mirza. J. Granted unconditional leave to defendant No. 2 as ,,the Advocate for the plaintiff had no objection.
4. Defendant No. 2 in his written statement denied the execution of the guarantee. Therefore, on 12-4- 1976 by consent of the parties Court framed the following Issues r "(1) Whether defendant No. 2 executed the letter of guarantee dated 23rd December, 1972 ?
(2) Whether the suit against defendant No. 2 on the basis of the guarantee is not maintainable ?
(3) What relief, if any, the plaintiff is entitled to against defendant ' No. 2 ?"
5. The plaintiff examined Mohomed Hussain, Officer-in-Charge of Advance Department. McLeod Road Branch of Habib Bank Ltd. Who was also attorney of the bank. He proved the execution of the promissory note (Exh. 5/1) by defendant No. 1 and the execution of the guarantee (Exh. 5/2) by defendant No. 2. According to him the guarantee was signed by defendant No. 2 in his presence and in the presence of his Manager Mohammad Jamil, defendant No. 2 on his application was first examined on commission. However, subsequently, he appeared in Court and was examined by his counsel. The main issue requiring consideration in this case is whether the guarantee Exh. 5/2 was executed by defendant No. 2 as his liability rests thereon. The execution of the guarantee is proved not only by Muhammad Hussain incharge of the plaintiff but defendant No. 2 in the witness-box in his cross-examination has stated "I am not sure that the signatures in Exh. 5/2 are mine".
6. Defendant No. 2 had sari: with the Habib Bank Ltd. At Sargodha and the plaintiff has produced his account opening form Exh. 5/3 The defendant No. 2 has not denied the execution of this form. In fact in cross-examination he stated that "it is cost that in the account opening form Exh. 5/3, I have not given my designation and I have also not written my name below my signature". Now on comparison of the signature of defendant No. 2 on Exh. 5/3 which is an admitted document with his signature on Exh. 5/3 I entertain no doubt that both the signatures are the signatures of one and the same person.
7. The comparison of disputed signature of a person with his admitted or proved signature by Court or jury or a competent witness called for the purpose is a lawful mode of proof in view of the provisions of section 73 of the Evidence Act. No doubt, it is unsatisfactory and dangerous to stake a decision in a case where there is a direct conflict of testimony between parties as to general character of a signature, on the correct determination of the signature by mere comparison with the admitted signature, especially without the aid in evidence of microscopic enlargements or any expert advice at held by the Privy Council in Kaasarbai v. Jethabhai Jivan AIR 1928 P C 217. But in the instant case as quoted above, what defendant No. 2 has stated in hi deposition about signature on the letter of guarantee was that he was not sure whether the signature thereon was his.
8. I may also mention that the plaintiff had sent notice demanding repayment of its dues to defendant No. 2 and a copy of this letter was received by him and in token of the receipt he signed a receipt (Exh. 5/5 which receipt is not of course, in his handwriting, but on which there is the following endorsement which has been scored of t "Thanks. It does not concern me. I wish to talk to Ghazanffer", and below this endorsement there appear two signatures (initials) and he admits that one of them is his but he could not say which of the two is his. These signatures (initials)I are marked Exhs. 5/5/1 and 5/5/2.
9. I for all these reasons hold that the letter of guarantee has been executed by defendant No. 2.
10. Mr. Sikandar Hayat counsel for defendant No. 2 contended that Muhammad Jamil Manager of the branch concerned of the plaintiff bank at Karachi has not attested the signature of defendant No. 2 although he is stated to be present and has been examined. But the submission has no force as it is not the requirement of law that some person must have attested the signature of defendant No. 2 on the guarantee, nor is it necessary that a particular number of witnesses should be examined to prove a fact Another submission which was advanced by Mr. Sikandar Hayat was that in the body of the guarantee Exh. 5/2 the name of the defendant No 2 does not appear. But again this is neither the requirement of law nor of any trade usage or banking practice that the name of the guarantor should C appear in the body of the guarantee. In fact the guarantee executed by the defendant No. 2 is in the form of a letter and is addressed to the plaintiff The title of the guarantee shows that it is a letter of guarantee. Therefore--- this submission is also without force.
11. The only other issue which requires consideration is whether the suit against defendant No. 2 on the basis of the guarantee is maintainable or not. There is no doubt that initially the suit was brought under Order XXXVII. C. P. C. But it had proceeded as an ordinary suit so far as defendant No. 2 is concerned because with the consent of Mr: Ghayoor Husain learned counsel for the plaintiff the defendant was allowed to defend the suit without any condition. Defendant No. 2 filed his written statement. Issues weirs framed. 'thereafter the said defendant on his own application was examined on commission and then he appeared in this Court and was again examined by his counsel Thus he had full opportunity to defend the suit. Under there circumstances and in the absence of any prejudice to defendant No. 2 the suit against him does not suffer from such an infirmity as to disentitle the plaintiff from enforcing its legitimate claim against defendant No. 2. I am fortified in my view by an unreported judgment of my brother Fakhruddin, J. In Suit No. 335/')2 (Standard Bank Ltd. v. Riaz-o-Khalid (Fisheries Ltd.) and 2 osiers), wherein his Lordship had treated the suit filed by the plaintiff against one person on the basis of the promissory note and against another person on the basis of guarantee as an ordinary suit even without any application for amendment of the plaint and this order was upheld by a Division Bench of this Court in High Court Appeal No. 75/73 filed by one of the defendants in that suit. It was observed by his Lordship I.
12. Mahmud, J. Who write the opinion of the Court, as follows : "In my opinion, the submission of learned counsel is misconceived,. Under rule 239, a Court has a discretion to direct the plaint filed in support of the originating summons to be admitted as a plaint in an ordinary suit. Instead of referring the party to a separate suit in the ordinary course."
13. I may also refer to another unreported decision of my brother Fakhruddin, J. Irk Suit No. 400/76 (Muslim Commercial Bank Ltd. v. Mat. Ahatija Bat and another). In this suit which was filed under Order XXXVII, C. P. C. Against defendant No. 1 on the bass of the promissory note and against defendant No 2 on the basis of the guarantee executed by hi-n, both the defendants jointly filed an application under Order XXXVII, rule 3, C. P. C. For leave to defend which was granted on the condition that they would furnish security for the amount claimed in that suit. On review application being filed by defendant No. 2 on the ground that he was not a signatory to the promissory note and the suit was not maintainable under summary chapter against him, his Lordship took the view that so far as defendant No. 2 was concerned summons could not have been Issued to him under Order XXXVII and ordered that fresh summons in the ordinary course be issued to him. Thus, it is clear that in one and the same suit clam against one defendant on the basis of the guarantee was allowed to proceed and, therefore, the maintainability of the suit was not considered to have been affected. There might have been some serious objection as to the maintain. Ability of the suit if more than one decrees could not have been passed in the same suit.
14. But under the provisions of the Civil Procedure Code mare than one decrees can be passed in a suit against one defendant or several defendants during the proceedings and at the conclusion of the proceedings. Even, otherwise, a Court !p- entitled to proceed on the principle that every procedure which furthers the administration of justice is permissible even though there is no express provision permitting the same. This was the rule laid down by their Lordships of the Supreme Court in H. M. Saga & Co., Karachi v. Wazir A.I Industries Ltd.. Karachi and another PLD 1969 SC 65. In this case a stranger to the suit who was affected had filed an appeal against the decree passed by the Court and it was observed by their Lordships at page 68 of the report as follows : "The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. The facts of this case arc; clear example in point. The Court should proceed on the principle that every procedure which furthers adminis--tration of justice is permissible even if there is no express provision permitting ;he same. Section 96 of the C. P. Code deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal.
15. The Code, however, lays down that that it is the decree or the order that has to be appealed against. If the decree or order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceeding."
16. For all these reasons I decide the issue in favour of the plaintiff and against defendant No. 2.
17. This brings me to the last issue, namely the relief. For the reasons stated above I hold that the plaintiff is entitled to a decree for the amount claimed is the suit with pendente lite and future simple interest at 12 % per annum. I accordingly decree the suit against defendant No. 2. Under the circumstances of this case I would not grant any costs against him.