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Civil Revision No.1149‑B of 1983, decided on 16th November, 1985.

‑‑‑S.115‑‑Revisional jurisdiction, exercise of‑‑Genuineness of document‑‑Proof‑‑Where careful and considered analysis of evidence would lead to positive conclusion that document had been executed and signed by executant, finding recorded otherwise, held, would be against weight of evidence based on misreading of evidence‑‑Such finding would suffer from material irregularity justifying exercise of revisional jurisdiction by High Court for setting aside same.

Qazi Abdul Hameed for Petitioner.

Muhammad Afzal Wala for Respondent.

Date of hearing: 16th November, 1985.

Mst. Noon Fatima, respondent herein, filed a suit against her husband, the petitioner, for cancellation of agreement, dated 9‑6‑1978, purporting to have been executed by the former in favour of the latter, relinquishing her right to receive deferred dower amounting to Rs.10,000. It was pleaded in the suit that at the time of parties' marriage, a sum of Rs.10,000 was fixed as deferred dower; sometime, before the institution of tile. suit, relations between the spouses became strained; the petitioner filed a suit for restitution of conjugal rights against her; during the course of hearing of that suit, the respondent raised the plea of non‑payment of dower; the petitioner produced the agreement, dated 9‑6‑1978 and thereupon, she learnt that a forged document has been prepared to deprive her of her, right to receive her dower and hence the suit. She denied her signatures on the document in question.

2. The suit was resisted by the petitioner who pleaded, inter alia, that the document was genuine and was voluntarily executed by the respondent in his favour and that it was duly signed by the respondent herself.

3. The learned trial Court put the parties to trial on the following issues:----‑

(1) Whether the agreement, dated 9‑6‑1978 is a forged and fabricated one and has not been signed by the plaintiff

(2) Whether the value of the suit for the purposes of court‑fee has not been correctly fixed; if so, what is its effect

(3) Whether the plaintiff has relinquished her right to receive the dower

(4) Relief.

4. The plaintiff‑respondent, in support of her claim, examined P. W.1 Muhammad Yaqoob Khan and P.W.2 Ghulam Muhammad, while she herself appeared as P.W.3. P.W.1 Muhammad Yaqoob Khan and P.W.2 Ghulam Muhammad did not utter a single word about the genuineness or otherwise of the agreement in question. They stated that Nazeer had admitted before them that at the time of the execution of the agreement, the plaintiff‑respondent was not present. Surprisingly, the statement of Mst. Noon Fatima, plaintiff‑respondent, has not been recorded on oath. She stated that she did not execute the agreement in favour of the defendant‑petitioner and that on no occasion, she has relinquished her right to receive the dower. She denied her signatures on the agreement, dated 9‑6‑1978, Exh. D.4. She denied that in the Court of Malik Manzoor Hussain, Civil Judge, where the suit for‑restitution of conjugal rights, brought by the petitioner, remained pending, she stated that her signatures were obtained by fraud. In the same breath, she deposed that she could not recall this fact.

5. In rebuttal, the defendant‑petitioner examined D.W.1 Muhammad Nazeer Azhar and D . W . 2 Allah Ditta while he himself testified as his own witness as D.W.3. Muhammad Nazeer Azhar, is the scribe of the agreement in question (Exh. D.4.) Allah Ditta is the marginal witness of the said document. Both these witnesses stated that the respondent voluntarily executed the agreement, dated 9‑6‑1978 (Exh. D.4.) whereby she relinquished her right to receive dower from her husband and that in their presence, she affixed her signatures on the agreement, Exh. D.4. Idrees Ahmad petitioner also testified to the same effect.

Mr. Zaka A. Malik, a handwriting expert of Lahore, has also been examined as D.W.4. He compared the disputed signatures on Exh. D.W.4 with the admitted signatures of the respondent and the ones taken as specimen before the Court. This witness has opined, vide his report, Exh. D.5, that all these signatures were of one and the same person viz. Mst. Noor Fatima respondent. He has also prepared enlarged photographs (Exh. D.6.) of the disputed signatures and of the specimen signatures. The handwriting expert has given in detail his reasons for his opinion.

6. On the basis of the aforesaid evidence, the learned trial Judge came to the conclusion that the disputed document (Exh. D.4.) was duly executed by the respondent in favour of the petitioner. He, there fore, dismissed the suit of the respondent on 7th September, 1981.

7. Feeling aggrieved, the respondent preferred an appeal against the judgment and decree, dated 7‑9‑1981, passed by the learned Civil Judge, Sheikhupura. The appeal has been accepted by a learned additional District Judge, Sheikhupura, on 31‑5‑1983. Resultantly he decreed the suit of the respondent.

8. The petitioner has thus called in question the aforementioned judgment and decree, dated 31‑5‑1983, passed by the learned Additional District Judge, Sheikhupura, through the present civil revision.

9. The evidence, oral as well as documentary, led by the parties to prove the genuineness or otherwise of the document in question (Exh. D.4) has been discussed above, in detail. A careful and considered analysis of this evidence leads to a positive conclusion that the document, Exh. D.4, has, in fact, been executed and.‑signed by Mst. Noor Fatima, respondent. An otherwise finding, recorded by the learned Additional District Judge, is against the weight of evidence and is based on misreading and misconstruction of evidence. The impugned judgment, therefore, suffers from material irregularity within the meaning of section 115 of the Code of Civil Procedure.

10. In this view of the matter, the civil revision is allowed and the impugned judgment and decree are set aside, while judgment and decree, passed on 7‑9‑1981, by the learned trial Court, are restored.

There shall be no order as to costs.

A. A. Revision allowed.

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