The plaintiff's suit is under Order XXXVII, C. P. C. The claim from the defendant Rs. 55,000 on two promissory notes, one for Rs. 30,000 (Exh. P/14) dated 2-9-1964, and the other for Rs. 25,000 (Exh. P/ 15) dated 10-10-1964. The case set out in the plaint is that these promissory notes were given by the defendant for two friendly loans taken by him from the plaintiff on the dates the notes were executed. These loans are also alleged to have been acknowledged by two receipts, both of which are attached to the promissory notes. The plaint further states that defendant gave to the plaintiff, on 10-10-1964, a post-dated cheque for Rs. 25,000 (Exh. P/10) payable on 9-7-1965 towards discharge of the promissory note Exh. P/15. This cheque purports to be drawn on one of the branches of the Habib Bank Limited at Lahore. According to the plaintiff, the cheque was dishonoured on presentment to the bankers, whereafter the defendant was approached by the plaintiff several times for repayment of the loans and when he failed to do so, the plaintiff brought the present suit On 9-1-1967, the defendant was given leave by me to appear and defend the suit, but subject to his- furnishing security for the plaintiff's claim. This security was duly given, whether the defendant filed his written statement in which he denied that he bad executed the two promissory notes or the cheque, Exh. P/10, all three documents being alleged by the defendant to be forgeries. On 7-8-1967, the case came up before me for settlement of issues. The plaintiff was absent. The defendant's Advocate presented the following issues;-----
(1) Whether the plaintiff advanced a friendly loan of Rs. 55,000 to the defendant at Karachi as alleged by the plaintiff in para. 1 of the plaint ?
(2) Whether the defendant executed the two promissory notes and the receipts in his favour as alleged by the plaintiff ?
(3) Whether the defendant issued the Cheque No. 60671 dated 9-7-1965 for Rs. 25,000 to the plaintiff on 10-10-1964?
(4) Whether the plaintiff filed the above-noted suit against the defendant in order to bring pressure upon him and delay the payment of the defendant's amount of Rs. 1,25,035?
(5) To what relief, if any, the plaintiff is entitled?
I accepted these issues as I found that they fairly reflected the contest between the parties, and even permitted the plaintiff to found his claim on the original consideration, if any, for which the promissory notes are alleged to have been given, and also on the cheque Exh. P/10. Later, the suit came up for trial before my learned brother, Dorab Patel, J. Who recast the issues as follows;---- "(1) Have the promissory notes (Exhs. A and B) not been signed by the defendant, if not what is the effect?
(2) What relief parties are entitled?"
It was stated at the bar before me that the issues were so recast at the plaintiff's instance. As no application was made before me by the plaintiff to change or alter the issues, I would assume that the issues were recast by my brother Dorab Patel, J. At the instance, and with the consent of the plaintiff. Now, whereas the original issues required the trial to proceed both on the basis of promissory notes and cheque, as also on original consideration, the issues recast on 21-8-1968 confine the controversy between the parties only to the question whether the promissory notes, Exh. P/14 and P/15, were signed by the defendant. In other words, the plaintiff, in getting the issues recast, agreed to rest his case solely on the promissory notes, thereby waiving any alternative claim on the cheque or the original consideration.
2. Issue No. 1.---The main question raised under this issue, on which the decision of the suit itself depends, is whether the promissory notes, Exhs. P/14 and P/15, bear the defendant's signatures. The defendant examined himself as D. W. 2, and in his statement before the Court he repudiated his signatures on these documents, as well as on the cheque, Exh. P/10. According to the defendant, he was at Nowshera on 2-9-1964 when the first promissory note, Exh. P/14, purports to have been executed by him at Karachi, and on 10-10-1964, the date of the second promissory note, Exh. P/15, and the date on which, according to the plaintiff's allegation in the plaint, the defendant gave the post-dated cheque Exh. P/10 the defendant claims to have been at Lahore. With regard to this cheque, the defendant also stated that the cheque book, from which this cheque had been taken, was issued to him by the Habib Bank Limited, Sabzimandi Branch, Lahore, on 2-I1-1964. The cheque book itself has been brought on record as Exh. 12 and the bank's evidence is also to the effect that this cheque book was issued on 2-11-1964.
3. The main evidence on the question whether these documents bear the defendant's signatures is that of Mr. Cyril Bhan, the handwriting expert, whose reports are Exhs. 37/2 and 37/12. Mr. Bhan's deposition in Court is Exh. 37/A. The signatures on these three disputed documents, that is, Exh. Pi10, the cheque, P/14 and P/15, the two promissory notes, were compared by Mr. Bhan with the defendant's admitted signatures on the agreement dated 18-12-1964, which is Exh. 17, and the defendant's signatures taken in Court on 6-11-1967, which were sent to Mr. Bhan as Annexures A-1 to A-3. Mr. Bhan also gave opinion on Exh. 37/1, a letter allegedly written by the defendant to the plaintiff on 25-11-1964. Thus, Mr. Bhan had four disputed documents before him, allegedly bearing the defendant's signatures, which he compared with the admitted signature on Exh. 17 and the defendant's signatures taken in Court. Mr. Bhan prepared photographic enlargements of these signatures. The photographic enlargement of the signature on Exh. 37/1 is marked as "C" in 37/8.
The photographic enlargements of the signature on Exh. P/14, the promissory note dated 2-9-1964, are "E/1" in Exh. 37/9 and "E/2" in Exh. 37/10. The photographic enlargement of the signature on the receipt attached to this promissory note is "E/3" in Exh. 37/11. As regards Exh. P,15, the promissory note dated 10-10-1964, the photographic enlargements of the signatures thereon are "D/1" in Exh.
37/9 and "D. 2." in Exh. 37/10. The signature on the receipt attached to this promissory note is D/3 in Exh. 37/11. The photographic enlargements of the admitted signature on Exh. 17 are "B/1" at No. 2 in Exh. 37/8 and "B/2" at No. 2 in Exh.37/9, and again "B/2" at the No. 2 in Exh. 37/10. The photographic enlargements of the signatures taken in Court appear in Exhs. 37/8, 37/9 and 37/10.
4. In the opinion of Mr. Bhan, the signatures on the four disputed documents are not of the same person whose signatures were taken in Court on Annexures A-1 to A-3 or who has signed the agreement Exh.
17. The reasons given by Mr. Bhan for coming to this conclusion are these;--
(i) examination of the disputed signatures and admitted signatures in natural day light and under ultra-violet rays showed that letters in the disputed signatures were made up by joining short strokes, that is, initially short strokes laid down the outline of the letters, which were then covered over by another stroke or repeated retouching ;
(ii) in the signatures on the disputed documents there were peculiar pauses resulting in squared ends and beginning of the letters, which is usual when a writer pauses his pen to assure himself as to whether or not he should terminate the stroke ;
(iii) the strokes in the admitted signatures are made boldly and fluently the breaks thereof have been left undisguised, whereas the breaks in the disputed signatures are disguised by additional strokes over the letters ;
(iv) the disputed signatures showed laboured writing, with the purpose of producing a likeness in shape or outline in letter, the examples of which were seen in the distorted parts of the signatures, making the letters "o'h" illegible, or making the letter "o" in place of "a" in signa--tures "C" and "D/2", or in bungling the lower portion of the letter "h" in signatures "E/2" ; .
(v) the lines below the disputed signatures at "C", "D/1" to "D/3", "E/1" to "E/3" are made up by stringing short strokes together.
(i) the signature at "C" is in very pale blue ink, which has been repeatedly painted over to disguise pen lifts. Most of the strokes in this signature show that the writer has gone over and overwritten strokes to suppress the faults in the quality of the line, such as joins, tremors, or erratic departures of the pen ;
(ii) several strokes, such as those of the humps of the letters, "M", "h", "d" and "S", have been added to make them longer, and the stroke provided as a concluding flourish for the letter "S" shows a join, as if a stroke had been grafted on to the main stroke ;
(iii) the formation given to letter standing for "o" after "M" is no different from the formation given to "a", which appears due to the difficulty in making the pen to travel smoothly after the conclusion of the oval, and the ovals, as in "a" after "h" and "S", are themselves built up by three or more strokes being joined together ;
(iv) there are number of dots strung together under the written strokes, creating a pattern in a dotted line, which has subsequently been painted over to lend the stroke an appearance of continuity ; and
(v) the transmitted ultra-violet rays photographs marked UV/1, UV/2 etc. Show very uneven distribution of ink due to several applications of the pen charged with ink to patch up the strokes.
5. Thus, according to Mr. Cyril Bhan the signatures on the disputed documents are total forgeries.
Mr. G. H. Abbasi, the plaintiff's learned Advocate, contended that Mr. Bhan's opinion should be taken with caution, and in this connection read a passage from Sarkar's Law of Evidence. No doubt, in suitable cases, opinion of experts may require to be treated with, caution. But such opinion is admissible in evidence under section 45 of the, Evidence Act. In view of Mr. Abbasi's contention, I myself compared the photographic enlargements of the admitted signatures with those of the disputed signatures. In the disputed signatures, unlike the admitted signatures, there is no swift or carefree movement of the pen. Further, there are frequent hesitations and pen-lifts in the disputed signatures. It would appear as if the writer of these signatures was very careful in placing the pen on the paper. Unlike the admitted signatures, the photographic enlargements of the disputed signatures show obvious breaks, tocover which considerable effort appears to have been made in re-touching the letters in these signatures.
6. Apart from Mr. Bhan's opinion, there is other sufficient material on record to show that Exh. P/10, P/14, P/15 and 37/1 do not bear the signatures of the defendant. Exhs. P/14 bears the date of 2nd September 1964, and is alleged to have been executed by the defendant at Karachi. But there is evidence that on this date the defendant was at Nowshera, where he had gone to receive the amount of his bill from the Colony Sarhad Textile Mills Limited. The defendant is corroborated on this point by D. W. Muhammad Salim (Exh. 39), who is Purchase Officer of this Mill. This witness stated that on 2-9-1964 the defendant personally handed over to him the letter Exh. 39/3, which letter was written in the presence of the witness himself. On the second day, that is, 3rd September 1964, the defendant wrote Exh. 39/1, acknowledging receipt of Rs. 23,995.20, and also signed the voucher Exh. 39/2. One point of importance is that the receipt attached to Exh. P/14 is attested by two witnesses, Muhammad Ayaz Khan and Arjmand Malik. The plaintiff admitted that the sum of Rs. 30,000, against which this promissory note was given, was paid to the defendant by the plaintiff's father, Nazar A.I. But neither Nazar A.I, nor Muhammad Ayaz Khan or Arjumand Malik, were examined as witnesses by the plaintiff. With regard to Exh. P/12, a material question is whether the defendant gave the cheque Exh. P/10 to the plaintiff when he allegedly received the amount of Rs. 25.000. In this connection, the plaintiff has given three inconsistent versions. In the plaint he stated that this cheque was given simultaneously with the payment of Rs. 25,000 by the plaintiff to the defendant and the execution and delivery by the latter of the promissory note Exh. P/15. Later, however, after probably knowing the nature of the defence, this version was changed, and Exh. 37/1, a letter allegedly bearing the signature of the defendant, was filed in Court, in which the defendant purports to make the statement that he is enclosing with the letter a post-dated cheque for Rs. 25,000 payable on 9-7-1965. But in his deposition in Court, the plaintiff adopted a third version by stating that the cheque, Exh. Pj10, was sent to him on 16-10- 1964. The plaintiff admitted, in cross-examination that the plaint was drafted under his instructions, but the statement in the plaint that the cheque, Exh. P/10, was given to him on 10-10-1964 was explained by the plaintiff as due to a typing mistake. It is difficult to believe that this statement can be the result of any typing mistake. This would become apparent from paragraph 2 of the plaint, which is reproduced hereunder :--- "That when the defendant executed second promissory note for Rs. 25,000 on 10-i0-1964, he simultaneously gave a post-dated cheque for Rs. 25,000 payable on 9-7-1965 i.e. After 9 months.
With regard to the balance of Rs. 30,000 the subject-matter of promissory note dated 2-9-64, the defendant promised to----"
This part of the plaint should satisfactorily establish that there was no typing mistake, and that the subsequent versions given by the plaintiff with regard to the date when this cheque was given to him were invented to meet the defence that the cheque book, from which this cheque was taken, was actually issued by the Habib Bank on 2-1i-1964. This cheque book is Exh.
12. D. W. Rashid Ahmad, Manager of the Habib Bank's Branch at Sabzimandi, Lahore, deposed that the requisition slip, Exh. 8, for this cheque book is dated 31-10-1964, and the cheque book itself was issued on 2-11- 1964. The plaintiff then tried to prove the genuineness of Exh. 15 by examining P. Ws. Shaikh Shafqat A.I and Rehmat A.I, both of whom claimed to have attested, as witnesses, the receipt attached to this promissory note. But the evidence of these two persons cannot be relied upon. Shaikh Shafqat A.I is the plaintiff's real brother, while Rehmat A.I is the plaintiff's uncle. Both these persons, therefore, are interested witnesses.
7. There is other evidence on record which makes .It improbable that the defendant executed the two promissory notes or the cheque, Exh. P/10. There is Exh. 16, which is an agreement executed by the plaintiff and the defendant on 17-12-1964, in which a sum of Rs. 36,300 is shown as due from the defendant to the plaintiff. No reference is made in this agreement to the two amounts of Rs. 30,000 and Rs. 25,000 for which the two promissory notes were allegedly given by the defendant. Another agreement is Exh. 17, which the parties executed on 18-12-1964. Under this agreement, the defendant delivered to the plaintiff his stocks of nuts and bolts, to enable the plaintiff to pledge these goods with some bank for Rs. 36,300, which was debt shown in this agreement as owing from the defendant to the plaintiff.
Clause 5 of this agreement provided that if the loan received by the plaintiff on this security exceeded the amount of the debt due from the defendant, then the difference between the sum of Rs. 36,500 and the amount of the loan obtained from the bank will be paid by the plaintiff to the defendant. Now, if on 17th December or 18th December 1564, the defendant owed a further sum of Rs. 55,000 to the plaintiff against the two disputed promissory notes, then this debt also should have found mention in the two agreements. Further, in that case there would have been no question of the plaintiff making payment to the defendant of such sum of money as he might receive from the bank in excess of Rs. 36,300. Then there is correspon--dence exchanged between the parties, Exhs.20, 25, 28 and 29, between 20th March and 24th June 1965. But there is no reference therein to the loans outstanding against the disputed promissory notes. The plaintiff stated in his evidence that the second loan of Rs. 25,000 for which the defendant is alleged to have executed the promissory note, Exh. P/15, was made by him personally to the defendant at Karachi.
According to him, he bad come to Karachi to attend the funeral of his cousin, Javed, for which purpose he took an air flight from Lahore on 9-10-1964. The defendant is alleged to have met the plaintiff at the Lahore Airport, where he is said to have made an appointment to meet the plaintiff at Karachi on 10-10-1964. In support of this contention, the plaintiff produced his diary, Exh. 42/3. But in my opinion the plaintiff appears to have over-played his hand in preparing this diary. In the evidence the plaintiff stated that it was on 9-10-1964, at the Lahore Airport, when he made an appointment to meet the defendant at Karachi on the following day. But in the diary, he made an entry on 17-8-1964, to the effect that he had to reach Karachi on 10th October 1964 for the purpose of advancing a loan to the defendant. The plaintiff was unable to explain why he decided as early as 17-8-1964 to go to Karachi to advance a loan to the defendant, when this loan could as well have been given at Lahore, which is the place where the plaintiff resides and carries on his business. The plaintiff admitted that the payments against the disputed promissory notes were made in cash but he failed to state the sources from which he collected such big amounts as Rs.
30,000 and Rs. 25,000. Here, I may again make a reference to the evidence of P. W. Shafqat A.I, who claimed that he had attested the receipt attached to the promissory note, Exh. P/15. The witness saw the promissory note in the Court and stated that this document was brought by the defendant himself, bearing all the entries which appeared in the document when it was seen by the witness in the Court. Now, this promissory note itself contains an endorsement that the sum of Rs. 25,000 had been paid by the cheque Exh. P/10, and even the number of the cheque is written in the promissory note. According to the version set out in the plaint, the cheque was given by the defendant on the same date when he executed the promissory note and obtained the loan of Rs. 25,000, but P. W.
Shafqat A.I stated that no cheque was delivered by the defendant to the plaintiff when the promissory note was executed and that when asked for the cheque, the defendant said that he would send it from Lahore. This whole story is against the plaintiff's case as made out in the plaint, and against the endorsement on the promissory note itself that it had been paid by the cheque Exh. P/10.
8. The evidence of the handwriting expert, Mr. Cyril Bhan has, in my opinion, sufficiently established that the signatures of the defendant on the two promissory notes, Exhs. P/ 14 and P/15, and on the cheque Exh. P/10, and on the letter, Exh. 37/1, are forgeries. My own comparison of the photographic enlargements of these signatures with those of the admitted signatures leads me to agree with Mr. Bhan's opinion. Further, the evidence of Habib Bank's Manager, and the absence of any mention of the two promissory notes, or the loans outstanding there-against, in Exhs. 16 and 17 and in the correspondence exchanged between the parties, also establishes that the signatures on the disputed promissory notes are forgeries and that the defendant did not take from the plaintiff the loans of Rs. 30,000 and Rs. 25,000 against which he is alleged to have given these negotiable instruments. The defendant is alleged to have taken the loan against the first promissory note, Exh.
P/14, at Karachi on 2-9-1964, but on this date his presence at Nowshera is established by evidence which, I have no reason to disbelieve. The plaintiff's evidence on the question of his presence at Karachi on 10-10-1964 contains inherent weaknesses. The two persons who are supposed to have attested the receipt attached to Exh. P/15, the promissory note dated 10-10-1964, cannot be believed as they are interested witnesses. The attesting witnesses to the receipt attached to the first promissory note, Exh. 14, have not been examined in Court by the plaintiff; nor did the plaintiff examine his father, Nazar A.I, who is alleged to have paid the sum of Rs. 30,000 to the defendant at Karachi on 2-9-1964. With regard to the second promissory note, Exh. P/15, another point of importance to be taken note of is that the plaintiff sought to prove this transaction by the cheque, Exh. P/10. In the plaint he stated that this cheque was given at Karachi when the defendant executed Exh. P/15 and received the loan there-against, but in his deposition in Court he changed his version to the effect that this cheque was received on 16-10-1964 with the defendant's letter Exh.
37/1. But the bank's evidence is that the cheque book from which this cheque was taken was issued on 2-I1-1964. Of course, the Bank's Manager did say that this cheque contains the signature of the defendant ; but I cannot accept this statement as evidence in proof of the fact that the cheque, Exh. P/10 was in fact signed by the defendant, in view of expert opinion given by Mr. Cyril Bhan, and the result of my own comparison between the photographic enlargements of the signatures on this cheque and those of the defendant's admitted signatures. The whole evidence, therefore, leads me to the conclusion that the promissory notes, Exhs. P,14 and P/15, do not bear the signatures of the defendant, and that the latter's purported signatures thereon are forgeries. A further difficulty in the plaintiff's way, as far as his claim on Exh. P/ 15 is concerned, is that he received the cheque Exh.
Pr 10 in payment of this promissory note. There is endorsement to this effect in the promissory note itself, which should, therefore, be deemed to have been discharged by the plaintiff accepting the post-dated cheque which was payable on 9-7-1965. The plaintiff, however, should have based his claim for Rs. 25,000 on this cheque. But by insisting on, and consenting to, the re-casting of the issues as aforesaid, the plaintiff in effect waived his claim on the basis of the cheque. Therefore, for this reason also, the suit is not maintainable so far as it relates to the promissory note Exh. P/15.
9. Before coming to the next issue, I should discuss Mr. C. II. Abbasi's criticism of the evidence given by Mr. Cyril Bhan and D. W. Muhammad Salim, the Purchase Officer of the Colony Sarhad Textile Mills Ltd., Nowshehra. Mr. Abbasi contended that both these witnesses were with the defendant at Lido, a night club at Karachi on the night preceding 26th September 1968 when they gave their evidence in Court. This fact, according to Mr. Abbasi, should be sufficient to treat with, suspicion the statements made by these two witnesses in Court. But the plaintiff's own conduct is responsible in throwing these two witnesses with the defendant when they came to give evidence to Karachi. The defendant applied for issue of commission to examine Mr. Cyril Bhan and D. W. Muhammad Salim.
This application, however, was opposed by the plaintiff and was consequently rejected on 20-5- 1968 by the Court. Accordingly, the defendant applied for issue of summons to these witnesses, which application came before my learned brother Dorab Patel, J. On 28-8-1968 who felt difficulty in allowing this application, in view of the provisions of Order XVI, rule 19, C. P. C., under which no witness could be ordered to attend the Court in person unless he resides within the limits of the Court's ordinary original jurisdiction, or at a place less than 200 miles distance from the Court house. But the defendant's Advocate pleaded the previous order of the Court rejecting his application for issue of commission for the examination of D. Ws. Cyril Bhan and Muhammad Salim.
Accordingly; Dorab Patel, J. Accepted the application for issue of summons to these persons, with the direction that summons would issue at the defendant's risk, and that no adjournment would be given at the next hearing of the case if these witnesses failed to attend the Court. Consequently no option was left to the defendant but to pursuade D. Ws. Cyril Bhan and Muhammad Salim to come to Karachi to give evidence. Thus, the plaintiff himself placed the defendant in a situation where he had no course other than to remain in the Company of these two witnesses, so as to make sure that they would come to the Court to give evidence on his behalf. Moreover, D. W. Muhammad Salim has produced documentary evidence of a limited Company to show the defendant's presence at Nowshehra on 2-9-1964. The opinion of D. W. Cyril Bhan is confirmed by my own comparison between the disputed and admitted signatures and is further corroborated by evidence on record, which I have reviewed above at considerable length. I, therefore, find no substance in Mr. Abbasi's criticism of the evidence of these witnesses.
10. Issue No. 2.---Under this issue, the only question is what relief, if any, should be given to the plaintiff. Since I have come to the conclusion that the promissory notes, Exhs. P/'4 and P/15, do not bear the signatures of the defendant, the plaintiff is not entitled to any relief. Consequently, the suit is dismissed with costs.