1. ' Applicant has preferred this revision application under section 25 of the Small Causes Courts Act being aggrieved and dissatisfied by the judgment dated 12-10-2000 and decree dated 19-10-2000 passed by Judge, Small Causes Court, Karachi, dismissing the suit of the present applicant.
2. ' The brief facts of the case are that the applicant is the owner of Shop No,/13, G.K. 7/67. Murtaza Batool Alwani Mansion, Machi Miani Road No,1, Khardar, Karachi, let out the shop to the respondent initially at the rate of Rs,2,500 per month plus Rs,200 as maintenance charges, all payable in advance upto 5th of every calendar month. The tenancy commenced with effect from 1st July,1998 and an agreement to this effect was duly executed although prior to the commencement thereof.
3. ' As per the agreement aforesaid, after expiry thereof, the respondent was also liable to pay Rs,3,200 per month. The respondent paid rent- only upto October, 1998 but thereafter he failed to make any payment towards rent etc., On 13th July, 1999 he suddenly vacated the premises but without payment of rent due. Accordingly, at the time of vacation of the demised premises, an amount of Rs,27,800 was due against and payable by the respondent. In addition to the same, as per the agreed terms of tenancy, the respondent was also liable to pay as sum of Rs,9,600 being three months rent for want of notice prior to vacation of the premises. Thus, a total sum of Rs,37,400 remain payable by the respondent to the applicant. Since a sum of Rs,10,000 was lying as fixed deposit with the applicant, after deducting the same from the total outstanding rent, the respondent was still liable to pay a sum of Rs,27,400 which amount he failed to pay despite repeated demands. Accordingly, a legal notice dated 13-7-1999 was sent to the respondent but despite its service on him, it was neither replied nor the outstanding amount was paid by him.
4. Accordingly, a Suit No,131 of 1999 for the recovery of Rs,27,400 was filed in the Court of Small Causes Court Karachi on or about 7-8-1999. After service, the defendant filed his written statement on 20- 11-1999 wherein the respondent denied the execution of agreement dated 1-7-1998, he specifically admitted that initially he was liable to pay rent at the rate of Rs,2,700 and that it was specifically increased to Rs,3,200 with effect from January, 1999. In any case, he pleaded that he had vacated the demised premises in May, 1999 and not 13-7-1999, and two months rent was still outstanding against him. He also pleaded that he paid a sum of Rs,10,000 as advance and Rs,2,500 as advance rent which was available with the applicant and so after adjusting a sum of Rs,6,400 rent for two months, he was still entitled to recover a sum of Rs,6,400 from the applicant. Since the respondent had denied the execution of agreement dated 1-7-1998, the applicant vide application dated 22-1- 2000 sought the signatures of the respondent on the said agreement examined by referring the document to expert which was allowed by order, dated 27-1-2000. However, despite specific directions to the respondent by the learned trial Judge, the respondent failed to appear in Court and so also by order, dated 19-2-2000 the case was ordered to proceed.
5. ' After recording the evidence of the parties, learned trial Court dismissed the suit of the applicant as stated above.
6. ' Mr. S. Nasir Hussain Jaferi, Advocate for the applicant, has firstly drawn my attention on the impugned judgment passed by the learned trial Court wherein it has been observed that from perusal of the record irrespective of the verbal evidence, applicant has also filed tenancy agreement said to have been executed in between the parties on 1-7-1998 but the contents of the very document support the plea of respondent that it is fabricated as it has been rightly pointed out by defendant/respondent too in written arguments that the first page of document is shown to have been executed on 1-7-1998 but on the last and third page it is shown to be attested on 25-6- 1998. The contention of learned counsel for the applicant is that there is order, dated 27-1-2001 passed by the learned trial Court wherein by consent the application was moved by the applicant for examination of defendant's signatures to the handwriting expert and which was allowed.
7. According to learned counsel for the applicant the disputed signatures of defendant on tenancy agreement dated 1-7-1998 alongwith admitted signature of defendant on written statement.
8. Vakalatnama, and salary slips as filed by defendant/respondent himself alongwith his signature obtained in Court be sent to handwriting expert. Defendant/respondent he called in Court for giving his signature in presence of Presiding Officer for the above stated purpose and thus the application was disposed of. Learned counsel for the applicant has drawn my attention in this respect on the order, dated 19-2-2000 passed by the learned Court wherein it has been observed by the learned trial Court that the aforenamed respondent has not Appeared before the expert and such application was decided by consent and he was directed to give him signature in presence of Presiding Officer for sending the same to handwriting expert alongwith documents and for that purpose the matter was fixed on 16-2-2000 but the defendant/respondent and his counsel called absent, therefore, in the interest of justice the matter was adjourned to 19-2-2000 but again on 19-3-2000 both were called absent and thereafter the learned trial Court decided to proceed with the case and fixed the matter for evidence of plaintiff on 2-3-2000. Learned counsel for the applicant has further argued with vehemence that since there was order dated 27-1-2000 for the signatures of the defendant/respondent for sending the same to handwriting expert and he did not appear in Court on two occasions, yet the learned trial Judge proceeded with the evidence.
9. It was the duty of the trial Court to see the signatures and compare the same by virtue of Article 84 of the Qanun-e-Shahadat which is reproduced as under:-- "Comparison of Signatures, writing or seal with other admitted or proved.---(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signatures, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."
10. ' Learned counsel for the applicant has further argued that in written statement defendant/respondent has not denied the contents of para.1 of the plaint. Learned counsel has finally contended that the judgment passed by learned trial Court is liable to be set aside.
11. ' On the other hand Mr. Anwar Ahmed, learned counsel for the respondent, has argued that the judgment given by the learned trial Court is based on sound reasoning and signature on the documents/agreement are forged one.
12. ' I have heard learned counsel for the parties, have gone through the material available on record and the documents and the orders passed by the learned trial Court: ' Admittedly there is an application by consent for referring the documents to handwriting expert dated 22-1-2000 and on 27-1-2000 there are specific directions to the respondent by the learned trial Court to appear before the Court for giving his signatures as the same are to be sent to handwriting expert, the defendant/respondent called absent and did not give his signatures in.
13. Presence of the Presiding Officer for the above said purpose. Admittedly there is order, dated 19-2- 2000 passed by the learned trial Judge and the same has not been taken into consideration that there are already order and the defendant/respondent failed to appear before the Court for signature which was to be sent to the handwriting expert on two occasions, yet the learned trial Court decided to proceed for evidence of the plaintiff and has not taken into consideration its earlier order, dated 27-1-2000. Learned trial Court could have also compared the signatures of the defendant/respondent by virtue of Article 84 of the Qanun-e-Shahadat. I have very carefully examined the judgment passed by the learned trial Court and the judgment is not based on sound reasoning, particularly where there is also admission on the part of the defendant in view of his written statement. Learned counsel for the respondent has not been able to rebut A the contentions raised by learned counsel for the applicant. I am of the considered view that the learned trial Court has failed to consider all the circumstances as discussed supra and judgment has not been written is accordance with the law and in view of the evidence available on record, particularly the orders of the learned trial Judge on two occasions. I, therefore set aside the impugned judgment, dated 12-10-2000 passed by the Judge Small Causes Court, Karachi, in result this revision application is accepted.
14. ' Above are the reason of my short order, dated 20-8-2001.