MOIN US SAMAD KHAN vs Mrs — 2023 PLD 35 KARACHI-HIGH-COURT-SINDH

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MOIN US SAMAD KHAN VS Mrs. TANVEER QAZI O.XXXVII, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Arts.17 (2)(a), 74, 76, 84, 117 & 120---Suit for recovery of money on the basis of Promissory Note---Secondary evidence---Procedure---Comparison of signature---Court, jurisdiction of---Plaintiff sought recovery of money received by defendant along with mesne profit for making investments of that money in apartments---Validity---When defendant alleged that sale agreement and receipts were fake in respect of sale transaction of property and defendant did not produce original agreement or receipts on the plea that the same were lost, evidence with reward to loss of documents should have been produced first and then secondary evidence could be led---If loss of documents was not true, then secondary evidence had become useless---Signature or writing could be proved by adducing evidence of a person or persons conversant or equated with such signature---Alternatively, signature or writing could be examined by an expert and in failure to do so, burden was not shifted to other side and the suit should fail---Court in terms of Art. 84 of Qanun-e-Shahadat, 1984, could itself ascertain whether a handwriting or signature was genuine or not by comparing disputed handwriting or signature with admitted signatures, and then arrived at its own findings---One who pleaded fraud, onus was on him to prove the same and mere statement was not sufficient---For a Promissory Note, attestation was not a legal requirement as envisaged in Art. 17(2)(a) of Qanun-e-Shahadat, 1984---Not mandatory to refer document and signatures to handwriting expert, particularly in a situation where other party did not deny his signatures on number of documents---Witness was not cross-examined on material part of evidence and that part of testimony was considered to be admitted---During cross-examination, a witness stated that it was not within his knowledge, which meant that such witness was not sure about the assertion---Apartments in question were purchased by funds of plaintiff which was acknowledged by defendant in two documents---Defendant was liable to pay amount in question to plaintiff with 10% markup from the date of filing of suit, till realization of the amount---Suit was decreed accordingly.

MOIN US SAMAD KHAN vs Mrs — 2023 PLD 35 KARACHI-HIGH-COURT-SINDH

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