' The brief facts relevant for the disposal of this civil revision are that the petitioner tiled a suit for specific performance of contract against respondent No,1. Alongwith the suit an application of interim injunction was also tiled which was allowed by the learned Civil Judge, Gujranwala vide order, dated 16-7-1999 wherein respondent No,1/defendant was restrained from alienating the suit property to anyone else or burdening the same by any way till final disposal of the suit.
2. Respondent No,1 feeling aggrieved by the order, dated 16-7-1999 filed F.A.O. No,225 of 1999 before this Court on 30-7-1999. Pre-admission notice was issued for a date in the month of October, 1999 and meanwhile operation of the impugned order was suspended. Respondent No,1 after obtaining order, dated 30-7-1999 from this Court sold the property in dispute to respondent No,2 on 19-8- 1999. Thereafter, the abovesaid F.A.O. Was disposed of with the observation that the learned trial Judge will decide the case within six months. As already stated that respondent No,1 during pendency of the above said F.A.O. Sold the property in favour of respondent No,2, an amended plaint was filed wherein respondent No,2 was impleaded as defendant No,2. The petitioner produced five witnesses and got exhibited agreements, dated 2-5-1998 and 27-7-1998 allegedly executed by respondent No,1 and signed and thumb-marked by her as well as her husband Mian Abdul Sattar as marginal witness on Exhs.P.3 and P.4.
3. On 19-2-2000 the petitioner filed an application before the learned trial Court for comparison of signatures and thumb- impression of respondent No,1 and her husband, on agreements, dated 2- 5-1998 and 27-7-1998, with their admitted signatures from the Handwriting Expert. This application was contested by the respondent and the learned Civil Judge, Gujranwala vide his order, dated 3- 3-2000 dismissed the same. Hence this civil revision.
4. Learned counsel for the petitioner contended that the learned Civil Judge vide impugned order has decided the suit by accepting the version of respondent No,
1. It is further contended that in view of the denial of respondent No,1 in regard of execution of the documents it became essential for the petitioner to move the trial Court for comparison of the signatures and thumb-impression of respondent No,1 and her husband from the Handwriting Expert and the learned trial Court without assigning any reason dismissed the application of the petitioner which has resulted in miscarriage of justice. It is further argued that the application for comparison of signatures and thumb- impressions has been filed before commencement of the respondent's evidence and it was dismissed merely on the ground that it was a direction case and no allowance to delay the proceedings in the suit can be given to the plaintiff/petitioner. According to learned counsel the order was patently illegal and without jurisdiction.
5. Conversely, learned counsel for respondent No,1, Sheikh Abdul Aziz, Advocate has contended that the filing of present civil revision is based on mala tide and just a device to delay the trial. He further submitted that the case is ripe as both the parties have concluded their evidence and at this stage if the petitioner is allowed to lead further evidence it will amount to filling up the lacuna in the case.
6. I have heard learned counsel for the parties and have also perused the record with their assistance, therefore, this case is being decided as a notice case.
7. The admitted position on, record is that the suit was filed on 12-1-1999 and the written statement was filed by respondent No,1 on 27-2-1999. Issues were framed on 16-7-1999 on the same day the temporary injunction was issued in favour of the petitioner/plaintiff. As already stated that after tiling of F.A.O. The property was sold by respondent No, I in favour of respondent No,2 through a registered sale-deed. Respondent No,2 was impleaded as defendant No, 2 and the learned trial Court on 8-12-1999 framed some additional issues. The application was admittedly filed by the petitioner on 19-2-2000 when the respondents had yet to produce their evidence. In Rehman Dad and another v. Major Raja Sajawal Khan and others 1976 SCM R 350, it was observed as under:-- "The first respondent thereupon filed the aforementioned revision in the High Court of Lahore to assail the, order. The learned Single Judge held that the grounds given by the learned Civil Judge for refusing the appointment of a Local Commissioner. Were arbitrary and extraneous to the decision of the application and the exercise of discretion was not on sound legal principles. As for the contention that the order did not amount to a case decided so as to make the order revisable, the learned Single Judge held that since it finally decided the question as to whether a party is entitled to produce evidence, it amounts to a case decided. In his ultimate analysis the learned Single Judge held that in dismissing the application the learned Civil Judge has exercised his jurisdiction illegally and with material irregularity.
' The learned counsel for the petitioners was unable to convince us that the application was dismissed on judicious grounds. We do not see how by mere resisting the earlier application the first respondent was debarred from filing an application for the appointment of a Local Commissioner or for that matter it would have caused delay in the disposal of the case. In a case of this nature the report of the Local Commissioner subject to the objections, if any, would have facilitated the Court to formulate its opinion on the question and as such it would have been a judicious exercise of discretion if the application was allowed. The delay was, therefore, not a factor which could have come in the way of the exercise of discretion for such a course would have advanced the cause of justice. It is not the practice of this Court to interfere with discretionary orders unless they are palpably unjust or capricious or perverse but in the instant case as was rightly held by the learned Single Judge, the exercise of discretion was arbitrary and, therefore, it rightly called for interference, which in our view is eminently a just order. As for the non- maintainability of the revision application the view taken by the learned Single Judge is also not open to any legitimate exception."
8. In the present case the alleged signatures and thumb-impressions of respondent No,1 as well as her husband on both the documents i.e, Exhs.P.3 and P.4 appear as Exhs.P.3/2, P.3/5, P.3/6, P.4/1, P.4/2, P.4/5 and P.4/6 respectively. There is no doubt that natural variation in the signatures of a person may appear due to variety of reasons, such as passage of time, age infirmity and illness etc. A person may also attempt to disguise his signatures to defeat a transaction but in presence of thumb-impression, there is no possibility of any variation. The only reason advanced by the learned Civil Judge while dismissing the application of the petitioner was that "the same was to prolong the proceedings of suit and no allowance to delay the proceedings in the suit can be given to the petitioner/ plaintiff". This in itself is no good ground for dismissing the application, therefore, the finding of the learned trial Court is most arbitrary as this exercise of discretion is not based on sound legal principle. Therefore, I have no hesitation to hold that the learned Civil Judge has exercised the jurisdiction illegally and with material irregularity.
9. The Honourable Supreme Court of Pakistan in Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCM R 1778 held:-- "It is not necessary to admit any additional evidence in this Court. It appears that the trial Court could have collected more evidence but failed to do so. Even if one or the other party had failed to produce all the material document and/or failed to request for proper examination of the disputed document/signatures, the Court had ample power to do the needful so as to advance justice rather than injustice. The concept of the bar against filling the gaps is no more available in the present Pakistan Jurisprudence and the law, including, the precedent law on Islamic principles, which are being made applicable progressively to the proceedings before the Courts and other forums which are required to record/admit evidence. See Mian Aziz A. Sheikh v. The Commissioner of Income-tax PLD 1989 SC 613."
10. In the present case the report of Handwriting Expert, subject to the objections, if any, would have facilitated the Court to formulate its opinion on the question and as such it would have been a judicious exercise of discretion if the application was allowed. The delay was, therefore, not a factor which could have come in the way of the exercise of discretion for such a course would have advanced the cause of justice.
11. In the light of above discussion, this civil revision is allowed. The order, dated 3-3-2000 passed by the learned Civil Judge 1st Class, Gujranwala is set aside. Resultantly the application, dated 19-2- 2000 filed by the petitioner stands allowed. No order as to costs.