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Civil Revision No.343‑D of 1983, decided on 11th June, 1984.

Civil Procedure Code (V of 1908)‑‑

‑‑‑0. XL1, r. 27‑‑Evidence Act (I of 1872), S.45‑‑Additional evidence of Handwriting Expert‑‑Order passed without allowing opposite party to rebut‑‑Consideration of report of handwriting expert and his evidence without providing opportunity of rebuttal to opposite party not justified‑‑Judgment and decree passed on basis of additional evidence of handwriting expert without allowing opposite party to rebut same, held, was liable to be set aside being illegal in circumstances.

A.A. Ansari for Petitioner.

Mian Allah Nawaz and S.M. Akhtar Shah for Respondents. Date of hearing: 11th June, 1984.

On 12‑5‑1973 Manzoor Ahmad Khan petitioner filed suit for declaration and permanent injunction against Muhammad Din and Muhammad Sharif predecessor‑in‑interest of their respondents. The suit was resisted where on seven issues were framed. The trial Court decreed the suit on 31‑7‑1976. Feeling aggrieved defendant therein filed appeal before the learned District Judge, Bahawalpur which was entrusted to the learned Additional District Judge, Bahawalpur. During the pendency of appeal, Muhammad Din appellant moved application under Order XLI, rule 27, C.P.C., that signatures of Muhammad Sharif on agreement EXh.P.l may be got compared with the admitted signatures and sample signatures prepared in the Court of Civil Judge, by the handwriting expert. The application was accepted. The case was sent back to the Civil Judge, Hasilpur for recording additional evidence of handwriting expert after obtaining his report about the disputed signatures. The Civil Judge sent disputed signatures to the handwriting expert who gave his report Exh.D. 15 to the effect that signatures on agreement Exh.P.l was not of Muhammad Sharif. The trial Court had also examined Mr. A.G. Pasha handwriting expert as D.W.4. The trial Court then returned the case to the learned Additional District Judge who accepted the appeal, hence this revision.

2. Learned counsel for the petitioner submitted that since no opportunity was afforded to the petitioner by the trial Court or by the appellate Court to rebut additional evidence i.e. report Exh.D.15 and the statement of D.W.4, the handwriting expert produced by the opposite side therefore, the judgment of the appellate Court was bad in law. Conversely the learned counsel for the respondents supported the judgment of the trial Court.

3.I have considered the arguments advanced by the learned counsel for the parties. I find that although admittedly no opportunity was given by the trial Court or by the appellate Court to the appellant/' plaintiff to rebut the report of expert Exh. P. D and his evidence recorded by the trial Court yet the appellate Court has not only taken into account report of the Expert Exh.P.D., and his evidence but also appears to have been impressed by the same. I am of the considered A opinion that after having allowed the application moved by the respondents /appellants therein for permission to adduce additional evidence under Order XLI, rule 27, C.P.C., the trial Court in all fairness to the petitioner/ respondent therein should have afforded him opportunity to rebut the evidence. It is really unfortunate that although the appellate Court was requested in writing to allow an opportunity to the petitioner/ respondent to rebut the additional evidence yet the prayer was refused on flimzy grounds.

4. For what has been stated above, the revision is accepted, the judgment and the decree of the appellate Court is set aside and the matter is remanded back with the direction that the appellate Court shall decide appeal afresh after giving opportunity to Manzoor Ahmad Khan respondent therein to rebut the report and evidence of the expert.The parties are left to bear their own costs. The parties are directed to appear before the learned Additional District Judge, on 24‑6‑1984.

H . B . T . Revision accepted.

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