' On 7-9-1983 the respondent filed a suit against the appellant. In the plaint it was stated that the appellant agreed to sell suit property mentioned in para.1 of the plaint to the respondent vide an agreement dated 5-4-1981, extended vide another agreement dated 7-3-1982, for a consideration of Rs,50,000. Out of this amount a sum of Rs,40,000 was paid as earnest money while the balance was to be paid on the registration of the sale and the possession was delivered; that later the period for completion was extended up to 24-7-1983. It was then stated that the appellant has refused to perform her part of the contract. A decree for specific performance of the said contract was sought. In a written statement the appellant denied having entered into any such agreement or having received any money from him. According to the appellant the property is located in the heart of the city in a commercial area and the respondents has fabricated documents to usurp the suit property. It was stated that the respondent was her tenant in the said property. Following issues were framed by the trial Court:--
(1) Whether defendant executed agreement dated 5-4-1981 and 7-3-1982 and received a sum of Rs,40,000 as earnest money? OPP
(2) Whether the agreements are result of fraud, fictitious, without consideration and mala fide?
OPD
(3) Whether this Court lacks jurisdiction? OPD
(4) Whether plaintiff has cause of action? OPD
(5) Whether plaintiff is estopped by his words and conduct to file the suit? OPD
(6) Whether the suit is deficiently valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation?,0PD
(7) Whether plaintiff is entitled to decree for specific performance as prayed? OPD
(8) Whether defendant is entitled to special costs? OPD
(9) Relief.
' Evidence of the parties was recorded. The learned trial Court dismissed the suit vide a judgment and decree dated 7-4-1997. Feeling aggrieved the respondent filed a first appeal which was heard bly a learned Additional District Judge, Lahore who allowed the same on 20-11-1997 and decreed the suit of respondent.
2. Learned counsel for the appellants contends that there is no evidence on record in support of the valid execution of the said agreement by the appellant in favor of the respondent. It is contended that the learned Additional District Judge has proceeded to reverse the judgment and decree of the learned trial Court without any lawful grounds. The learned counsel for the respondent, on the other hand, has tried to support the impugned judgment and decree of the learned Additional District Judge.
3. I have gone through the trial Court records with the assistance of the learned counsel for the parties. The said agreement is on record as Exh.P.2. It purports to bear the signatures of the parties and Muhammad Bashir son of Mian Muhammad Shafi has signed the document as witness while the name of Muhammad Sarwar son of Khushi Muhammad has been mentioned as the second witness. The legend on the back of the stamp paper narrates that Ch. Muhammad Sharif had issued the stamp on 4-4-1981. The receipt for the balance amount of Rs,10,000 is Exh.P.3 and is to the same effect except it is written on a plain paper.
4. Now neither the said stamp vendor nor the person who had typed the said document was produced and of course none of the marginal witnesses were produced. One Muhammad Sarwar stated to be a handwriting expert was produced as P.W.1 who proved his report as Exh.P.1 which states that the specimen signatures of the appellants and the signatures on document Exhs.P.2 and P.3 are identical. Now he states in his cross-examination that he has not explained the identical features or characteristics in his report. He admitted that the word "URDU TEXT" and " & " in both the signatures are different.
5. Muhammad Hussain, respondent appeared as P. W.2. He states that he was a tenant in the property under the appellant who entered into agreement dated 5-4-1981. Now unlike the plaint he states that he paid Rs,30,000 as earnest money and 15 days' time was fixed for completion of the sale. Thereafter he paid Rs,10,000 more against receipt Exh.P.3 but appellant refused to perform her part. In this cross-examination he states that he does not know where the agreement was typed.
As according to him the agreement was got typed by the appellant. He does not know who scribed receipt Exh.P.3. He admits that both the documents are attested by the same witnesses. He states that Bashir is alive but he does not know his address while he does not know anything about the said Muhammad Sarwar.
6. In the said state of evidence the learned trial Court dismissed the suit. However, the learned Additional District Judge has taken the view that the report of the handwriting expert conclusively proves the execution of the document and it does not matter that the witnesses were not produced.
7. With the assistance of the learned counsel for the parties, I have examined the signatures on Exh.P.2 and P.3 and compared them with the specimen signatures. One need not be an expert to say that even to a naked eye these are signatures of different persons. Learned counsel for the respondent took the plea that the lady must have made an attempt to change her signatures while giving the specimen. I find a copy of her identity card on record at page 149 of the trial Court file. I repeated the exercise with the assistance of the learned counsel and I find that even the signatures on the identity card which was issued somewhere in the year 1984 do not also bear any similarity whatsoever. The so-called expert has himself admitted that the said two alphabets do not match.
8. The learned Additional District Judge has then proceeded to rely on certified copy Exh.P.4. This is a copy of the statement of Muhammad Bashir, witness. Now I may note here that the suit was ex parte decreed on 5-11-1983 and a sale-deed was also got registered on 22-4-1984. The appellant filed an application under section 12(2), C.P.C. Which was allowed on 15-9-1990 and the ex parte decree was set aside. The said statement was made by Muhammad Bashir in the course of proceedings in the said application under section 12(2), C.P.C. Now the only provision of law under which this -document could have been admitted in Article 47 of the Qanun-e-Shahadat Order, 1984. However, I find that no attempt whatsoever appears to have been made on the record to prove the witness who is admittedly alive, is not available or cannot be found. There is no evidence as to what efforts were made by the respondent to procure the attendance of the said witness.
Needless to state that the provisions of the law are mandatory and the document i,e, Exh.P.4 could have been admitted and read only within the parameters of the said Article 47 in strict compliance with the provisions thereof. I, therefore, find that the learned Additional District Judge has acted without legal authority in relying upon the said statement. Having thus examined the records, I do find that there is no evidence whatsoever of the execution of the document by the appellant on record and the learned Additional District Judge has acted against the law while setting aside the judgment and decree of the learned trial Court. This R.S.A. Accordingly is allowed and the judgment and decree dated 20-11-1997 of learned Additional District Judge is set aside while the one passed by the learned trial Court on 7-4-1997 dismissing the suit of the respondent is restored, with costs throughout.