RANA BHAGWANDAS, J.-- Leave to appeal is sought against the High Court judgment dated 22.10.1999, dismissing petitioners' civil revision application arising out of a suit- for specific performance brought by respondent Ahmed against the petitioners.
2. It was the case of the plaintiff that by virtue of an agreement of sale dated 8.1.1976 he agreed to purchase the suit lands from Mst. Zaibun Nisa through her son and attorney Munawar Khan for consideration of Rs. 16,000/- of which Rs. 8,000/- were paid at the time of execution of the agreement and a sum of Rs. 3,000/- on 9.2.1976. The Balance amount was agreed to be paid at the time of execution of the conveyance deed.
3. In the written statement petitioners denied the execution of the agreement and pleaded that it was forged and fabricated. Various other pleas were raised which were reflected in the issue struck down by the Trial Court.
4. Both the parties adduced evidence including the evidence of one of the attesting witnesses, namely, Ahmed, On assessm ent Trial Court dismissed the suit. In first appeal, learned Additional District Judge, Hyderabad set aside the judgment and decreed the suit with costs leading to civil revision application before the High Court of Sindh but without any success, hence this petition.
5. It is mainly contended on behalf of the petitioners that the Trial Court, on analysis and scrutiny of the evidence and examination of the disputed agreement, had come to a definite conclusion that the plaintiff had failed to prove the execution of the agreement of sale and thus the suit was rightly ,dismissed. Conversely, learned Additional District Judge took upon himself to compare the signature of the attorney on the disputed document With the admitted signatures of Munawar Khan without any notice to the parties and without their assistance. Learned counsel submitted that the High Court did not advert to this aspect of the case and omitted to dilate upon the authenticity or otherwise of the signature of the attorney and due execution of the alleged agreement. Apart from the oral prayer that the disputed signature may be referred to Hand- Writing Expert for comparison thereof with the admitted signatures as well as specimen signatures of the executant, an application to this effect has been moved before this Court. Mr. K.B. Bhutto, learned counsel for the respondents, has serious reservations about the prayer for referring the disputed document at the instance of the petitioners.
6. On careful consideration of the relevant documents as well as the record and examination of the submission made before us, we are of the view that there has been failure of justice in deciding the appeal and as to authenticity of the disputed agreement of sale, which requires to be independently proved apart from the evidence of one of the marginal witnesses.
7. We would, therefore, convert this petition into an appeal, allow the same and set aside the judgments of the appellate Court as well as the High Court and remand the suit to the Trial Court for decision afresh after referring the disputed document to a recognized Hand-writing Expert at the expenses of the petitioners and after allowing an opportunity of hearing to both parties.
Necessary exercise shall be completed within 90 days of the receipt of copy of this judgment.