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Civil Appeal No. 22 of 1970, decided on 15th October, 1986.

‑‑‑Art. 84‑‑Comparison of signatures‑‑Requirements‑‑Comparison of disputed signatures with admitted signatures of a party by Court would be permissible to enable Court to reach conclusion whether two signatures were of the same person‑‑Superior Courts, however, disapproved such practice by Court specially when person undertaking such comparison was not conversant with the subject and same was done without guidance derived from arguments of counsel and evidence of expert‑‑Comparison of disputed signature with admitted signatures by Trial Court without opinion of expert and guidance from arguments of counsel could not be accepted as conclusive proof of fact that disputed document was signed by a party or not.

Mst. Bibi Kaniz Zainab v . Mobarak Hossain A I R 1924 Pat. 294; Balak Ram v . Muhammad Said A I R 1923 Lah. 695; Glastaun v . Sonatanpal A I R 1925 Cal. 425 and Latafat Hussain v. Onkarmed 1935 Oudh 31 ref.

‑‑‑Art. 120‑‑Encashment of cheque, proof of‑‑In absence of supporting evidence, entry in cash book with regard to encashment of cheque alone, held, could not be deemed as proof of such payment.

‑‑‑S. 96‑‑Appellate jurisdiction, exercise of‑‑Comparison of disputed signatures with admitted signatures, held, was one of circumstances which influenced opinion of Trial Court in reaching conclusion that such signatures were not of the party to whom attributed‑‑High Court refused to interfere with findings of Trial Court in appellate jurisdiction where evidence on record and attending circumstances of case fully supported conclusions of Trial Court.

Akhtar Mahmood for Appellants.

S.H.Rizvifor Respondents.

Date of hearing: 15th October, 1986.

This first appeal under section 96, C.P.C. is filed by the defendant /appellant to challenge the judgment and decree of Additional District Judge, Karachi, decreeing the suit of respondent /plaintiff in the sum of Rs.25,000 with costs. The relevant facts are as under:‑

The appellant purchased deferred payment of Rs.96,590 which was available in the compensation book of respondent for a sum of Rs.60,000 on or about 12‑12‑1960. The appellant made part payment of Rs.5,000 to respondent on 12‑12‑1960 vide Exh.7. It was agreed that the balance of Rs.55,000 will be paid by the appellant to the respondent on or before 30‑6‑1961. It is an admitted position that the agreed payment could not be made by the appellant by the above date. However, on 4‑7‑1961 vide Exh.9 a sum of Rs.8,000 was paid by the appellant to the respondent which included a sum of Rs.5,000 towards part payment of the balance agreed consideration of Rs.55,000 and a sum of Rs.3,000 as compensation for delay in payment. As a result of above payment the parties agreed to extend the time for payment of the balance of the consideration upto 31‑12‑1961. It is again an admitted position that on 28‑12‑1981, the appellant paid only a sum of Rs.25,000 out of the balance of Rs.50,000 vide Exh.10 leaving a balance of Rs.25,000. It is the case of respondent that this balance of Rs.25,000 was not paid by the appellant in spite of service of two registered notices, dated 30th July, 1962 (Exh.ll) and 30th November, 1963 (Exh.13) whereupon she instituted Suit No.494 of 1964 for recovery of the same. The appellant in his written statement filed in the above suit denied the claim of the respondent /plaintiff and took the plea that the balance amount of Rs.25,000 was paid by him on 5‑9‑1964 under a receipt duly executed by the attorney of the respondent. On the basis of the above controversy between the parties the learned trial Court framed the following issues:‑

"(1) Whether defendant has made the full payment of the agreed consideration If not what amount the defendant has yet to pay

(2) Whether defendant agreed to pay additional amount Rs.3,000 and on that account the plaintiff extend the time to pay the remaining consideration by 31‑12‑1961.

(3) What should be the decree "

The respondent in support of her case examined her son/attorney Maqbul Ahmad (Exh.5) who denied execution of disputed receipt Exh.12. The respondent also examined witnesses Nasiruddin son of Omerdin (Exh.14) and Syed Asghar Ali son of Syed Asad A.li (Exh.15) who allegedly accompanied the son/attorney of respondent in November,1964, to the office of appellant when the former had gone to the latter to demand payment of balance of Rs.25,000. The appellant in support of his plea examined himself (Exh.18), Anwar Ali (Exh.19), Piarali (Exh.20) and Kassimali (Exh.21). The appellant also produced extract from cash book and the 1. iger book as Exhs.19, 22 and 23 respectively. The disputed document (Exh.12) was ordered to be referred to handwriting expert but by mistake another admitted document (Exh.10) was referred to handwriting expert who opined that the signature on the document (Exh.10) was not that of the respondent's attorney. In view of this report of handwriting expert and the delay which was likely to be caused in sending the disputed document to handwriting expert, the parties agreed before the trial Court that the question whether the disputed document (Exh.12) is signed by the respondent's attorney or not may be decided by the Court itself. The learned trial Court after analysing the evidence led by the parties came to the conclusion that the witnesses, produced by the appellant to establish execution of Exh.12 were highly interested and, therefore, no reliance could be placed on them without independent corroboration of their evidence. The learned trial Court also found that there were grave contradiction in the evidence of appellant who alleged that on the date he made payment to respondent he got a self cheque encashed, from his bankers Habib Bank Limited in order to make up the difference in the amount but he led evidence to prove this fact. It was also noticed by the learned Judge that while previous payments of Rs.5,000, Rs.8,000 and Rs.25,000 to respondent were made through cheque by the appellant, the disputed payment was made in cash although the appellant did not have the required cash with him and had to encash a cheque of Rs.15,000 to make up the deficiency. This conduct of the appellant appeared to the learned trial Judge as unusual and unexplained in view of the past practice followed by him in this regard. The learned trial Judge lastly found on comparison of the disputed signature of the respondent's attorney on Exh.12 with his admitted signature, that the disputed document (Exh.12) was not signed by him and as the disputed document (Exh.12) was also undated, he refused to rely on the same. As a result of above discussion of the evidence of appellant's side read with the denial of respondent's attorney the trial Court decreed the suit of respondent.

When this appeal was heard by me partly on 9‑4‑1984 I felt that there was ambiguity in evidence with regard to encashment of cheque by respondent on 5‑9‑1964 in the sum of Rs.15,000. The appellant in his evidence odalmed to have encashed the self cheque on the date of payment to respondent while in the evidence as well as in the judgment the learned trial Judge stated that such cheque was enacted on 9‑9‑1964. The learned trial Judge accordingly while disbelieving the appellant's version regarding encashment of cheque for Rs.15,000 observed as follows:‑

"Further, it is all the more surprising how and why the cheque was issued in the sum of Rs.15,000 on 9‑9‑1964 when payment was made on 5‑9‑1964. The payment could not have been made before the date of. the issue of the cheque. This discrepancy could not be explained from the defendant's side."

This ambiguity required clarification in the interest of justice and also to set at rest finally the controversy between the parties. The appellant in his cross‑examination had stated that he had account in Habib Bank only and could produce the deposit receipt and cheque book. On my inquiry the learned counsel for the appellant stated that the deceased appellant had account with Habib Bank Ltd., Foreign Exchange Branch and if their record is summoned it will establish the assertion of appellant regarding encashment of cheque on 5‑9‑1964 in the sum of Rs.15,000. Accordingly on 9‑4‑1986 I passed the following order for recording of additional evidence in appeal:‑

"I have heard this appeal partly and after hearing the learned counsel for the parties at length I feel that the evidence with regard to encashment of the cheques, dated 5‑9‑1964 and 9‑9‑1964 which are referred in the judgment as well as in the evidence of the appellant was not produced before the trial Court; and it is a material evidence on which the whole case is based. There appears to be no clear cut evidence with regard to encashment of the cheques although the trial Court has decided against the defendant /appellant mainly on the ground that although the amount of cheque was stated to have been encashed on 5‑9‑1964 whereas in the evidence he mentioned a cheque as, dated 9‑4‑1964. In order to clarify this ambiguity and to set at rest the entire controversy I feel it in the interest of justice to examine an officer from Habib Bank Ltd., Foreign Exchange Branch, Karachi with direction to produce the cheques issued and encashed by the defendant Company from 5‑9‑1964 to 9‑9‑1964. In case the cheques are not available relevant entries from the Account Book showing withdrawal of amount through cheques by the appellant Company on 5‑9‑1964 and 9‑9‑1964 be produced on the next date of hearing. For recording evidence of the bank officer adjourned to 29‑4‑1986."

In persuance of the above order one Rafiuddin, an officer of Habib Bank Ltd. , Foreign Exchange Branch, Karachi, appeared in Court on 29‑4‑1986 and he produced certified copy of the account maintained by the deceased appellant with the bank for the period from 30‑6‑1964 to 30‑12‑1964. Thereafter, the appeal was posted for regular hearing. On 25‑8‑1986 when the appeal again came up for further hearing Mr. Akhtar Mahmood, the learned counsel for the appellant stated that besides Foreign Exchange Branch of Habib Bank Ltd., the deceased also maintained accounts in other branches of Habib Bank and on order to do full justice to the parties, officers from those branches of Habib Bank Ltd. where deceased maintained account, may be summoned and examined in the case to prove encashment of cheque by the deceased on 5‑9‑1964. This prayer of appellant's counsel was not opposed by the learned counsel for respondent and accordingly on 25‑8‑1986 I directed issuance of witness summon to Manager Habib Ltd., Frere Road Branch and Napier Road Branch to produce in Court the cheques if any issued by the deceased appellant during September 1964. In response to the summon issued to Habib Bank Ltd. , Napier Road Branch, one Anwar Jamal, an officer of the bank appeared in Court on 1‑10‑1986 and stated that there was no account in the name of the deceased appellant during the year 1964. No question was put to the witness in cross‑examination by the appellant's counsel. Similarly, on the witness summon issued to Manager Habib Bank Ltd., Frere Road Branch it is stated that the branch of the bank itself was established on 5‑4‑1971. Accordingly the appeal was once again fixed for further hearing.

Mr. Akhtar Mahmood the learned counsel for the appellant contended that the reasons given by the trial Court for discarding the evidence of appellant are not tenable in law. It is contended that the oral evidence led by the appellant to prove payment of Rs.25,000 to respondent's attorney not only sufficiently established the payment alleged by the appellant by it stood fully corroborated by the documentary evidence (Exh.12) and the extracts from account book Exhs.19, 22 and 23. It is accordingly urged that the conclusion of the trial Court that the appellant failed to prove payment of Rs.25,000 on 5‑9‑1964 is contrary to evidence on record. It is further contended by the learned counsel that mere fact that the appellant had failed to prove encashment of cheque for Rs.15,000 on 5‑9‑1964 was by no mean conclusive to establish that no payment was made to respondent's attorney on that date and as such the Court below should not have totally disregarded the other evidence led by the appellant to prove such payment on that date to respondent's attorney. The learned counsel also contended that in view of the report of handwriting expert holding the admitted signatures of respondent's attorney of Exh.10 as not that of the attorney the result of comparison of the disputed signature of respondent's attorney with the admitted signature by the trial Court was not a safe test for arriving at the conclusion that the disputed signature on Exh.12 was not that of the attorney of respondent. The learned counsel for the respondent on the other hand contended that the parties having agreed to left it to the trial Court to decide whether the disputed signature on Exh.12 was that of the attorney of respondent or not no grievance in this regard could be entertained by this Court now if the result of such comparison by the trial Court had gone against the appellant. It is also contended on behalf of respondent that having been conclusively established in the light of additional evidence recorded by this Court that no cheque was encashed by the appellant on 5‑9‑1964, as alleged in his evidence before the trial Court, the story of the appellant that he made payment of Rs.25,000 to respondent's attorney on 5‑9‑1964 after encashment of a cheque for Rs.15,000 stands totally belied. It is accordingly urged by the learned counsel for the respondent that no case for interference with the judgment and decree of the trial Court .s made out. After hearing the learned counsel for the parties at enough I am of the view that this appeal must fail.

Learned counsel for the appellant has contended that the comparison of the signature of respondent's attorney with his admitted signature to find out whether the disputed document was signed by he attorney of respondent was not a safe course in this case as it is n admitted position or record that even the admitted signature of the respondent's attorney was found by the handwriting expert as not his signature. Learned counsel for the respondent on the other hand while opposing the above argument contended that the appellant having agreed before the trial Court that it should compare the disputed signature of the respondent's attorney with his admitted signature in order to find out whether the disputed signature was of respondent's attorney or not, no grievance can now be entertained after the result of such comparison by the trial Court had gone against him. It is an admitted position in this case that instead of sending the disputed signature of the respondent's attorney on Exh .12 alongwith other admitted signatures to handwriting expert the office of the trial Court by mistake sent the admitted document namely receipt, dated 28‑12‑1961 (Exh.10) to the handwriting expert. It is also an admitted position that as a result of comparison of the signature of respondent's attorney on Exh.10 with his admitted signature the handwriting expert opined that the signature on Exh.10 are not that of the person whose admitted signatures were sent to him. In these circumstances the learned counsel for the appellant rightly urged that the result of comrarison by the trial Court of the disputed signatures on Exh.12 with his admitted signatures could not be a conclusive test. Apart from it the course adopted by the learned trial Court for comparison of the signatures of the respondent's attorney on the disputed document with his admitted signature was otherwise hazardous as the learned Judge while comparing the disputed signatures with the admitted signatures of respondent's attorney, neither had the benefit of the argument of the learned counsel nor the evidence of the expert in this regard. Even the aid of microscopic enlargement of the disputed signatures were not available before the learned Judge while he was making he above comparison. No doubt comparison of the disputed signature with the admitted signatures of a party by the Court is permissible under section 73 of the Evidence Act to enable the Court to reach the conclusion whether the two signatures are of the one and the same person but in a series of cases the superior Courts disapproved, such practice by the Court specially when the person undertaking such comparison is not conversant with the subject and it is done without such guidance as may be derived from the argument of the counsel and the evidence of the expert in this regard. Reference in this connection may be made to the cases of Mst. Bibi Kaniz Zainab v . Mobarak Hussain A I R 1924 Pat. 294, Balak Ram v. Muhammad Said AIR 1923 Lah. 695, Glastaun v. Sonatanpal A I R 1925 Cal. 425 and Latafat Hussain v. Onkarmed 1935 Oudh. 31. In view of the abovel legal position the result of comparison of the disputed signatures with Iv the admitted signatures of the respondent's attorney by the trial Court could not be accepted as the conclusive proof of the fact that the disputed document namely (Exh.12) was signed by him or not. However, in the present case the conclusion of the learned trial Judge that the disputed signatures on Exh.12 could not be that of the attorney of the respondent is not solely based on visual comparison of the two signatures but is also supported by the attending circumstances of the case. The appellant in his evidence categorically made a statement in cross examination that on the day he made payment to the respondent's attorney he had only cash balance of Rs.13,000 with him and in order to make up the difference he got a self‑cheque in the sum of Rs.15,000 encashed before making the payment. He further claimed that this cheque was encashed from his account which he had with the Habib Bank through witness Piarali. He, however, could not produce the deposited book or the cheque book in support of his assertion. The additional evidence recorded before this Court in the case under Order XLI, rule 27, C . P. C . shows that during the disputed month of September 1964 no cheque at all was encashed by the appellant from the bank. Pirali, nephew of the appellant who was examined in the case after the evidence of appellant also nowhere stated in his evidence that he got any such cheque encashed issued by the appellant. In these circumstances the claim of the appellant that he made payment of Rs.25,000 on 5‑9‑1964 to the respondent's attorney after encashing a cheque of Rs.15,000 could not be said to have been substantiated. Learned counsel for the appellant very vehemently urged that entries in the book of account fully supported the plea of appellant. No doubt in the cash book produced by the appellant, there is an entry with regard to the encashment of al cheque of Rs.15,000 by the appellant on that date but in the absence of supporting evidence in that behalf this entry alone could not be held as proof of such payment. Apart from it, the respondent in' his cross‑examination admitted that the bank accounts are not entered in the books of account produced by him but they are entered in separate book. The preponderance of the evidence in the case, therefore, fully supported the plea of the respondent that he did not receive any l) payment from the appellant on 5‑9‑1964 and as such the conclusion arrived at by the learned trial Court that the disputed receipt Exh.12 did not bear the signature of the respondent's attorney is not without any material on record. It is wrong to say that the conclusion reached by the learned trial Court with regard to non‑payment of the amount by the appellant to respondent's attorney on 5‑9‑1964 is based solely on a comparison of the signature of the attorney on the disputed document (Exh.12) with his admitted signature. After reading the_ judgment as a whole I am of the view that the comparison of the disputed signatures of respondent's attorney on Exh.12 with his admitted signature was only one of the circumstances which influenced the opinion of the learned trial Court in reaching the conclusion that it was note signed by him. The other evidence on record and the attending circumstances of the case fully supported the conclusion of the trial Court that (Exh.12) was not signed by the respondent's attorney as no payment could be proved by the appellant on 5‑9‑1964. I, therefore, see no reason to interfere with the judgment and decree of the trial Court and reject this appeal with costs.

A.A. Appeal dismissed.

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