Gull Muhammad vs Shabir Ahmed

H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH,BAHAWALPUR.

JUDICIAL DEPARTMENT

Civil Revision No. 603 of 2016, (Gul Muhammad Vs. Shabbir Ahmad)

J U D G M E N T

Date of hearing. 05.10.2026.

Petitioner by:- Mr. Suhail Mehmood and Ms. Samina Qureshi, Advocates.

Respondent by:- M/s Jawad-ul-Hassan and Asad Maidian, Advocates.

TANVEER AHMAD SHEIKH, J.:- Through this revision petition the validity and legality of judgment/decree dated 01.03.2016, passed by learned Additional District Judge, Rahim Yar Khan has been assailed, whereby he dismissed the appeal and confirmed the judgment/decree dated 17.12.2015 passed by learned Civil Judge, Rahim Yar Khan, rejecting the plaint under Order VII Rule 11 C.P.C.

2.According to actual and factual back ground of the case, the petitioner filed a suit for specific performance of a contract on the basis of an agreement to sell dated 27.01.1999. Respondent/defendant moved an application therein under Order VII, Rule 11 of C.P.C. mainly on the grounds that said agreement to sell was a unilateral document. It was not bearing the signature of petitioner/plaintiff, as such no agreement to sell was in

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existence, hence he was having no cause of action in his favour. The learned trial court accepted the said application and rejected the plaint under Order VII, Rule 11 C.P.C. vide judgment and decree dated 17.12.2015.

3.Petitioner, feeling aggrieved of the said judgment and decree dated 17.12.2015 challenged the same through appeal, which was dismissed by learned Additional District Judge, placing reliance upon the dictum laid down by Hon’ble Supreme Court in case titled “Farzand Ali and another Versus Khuda Bakhsh and others” (PLD 2015 Supreme Court 187), observing that the agreement to sell was not bearing the signature of petitioner/ plaintiff.

4.The learned counsel for petitioner/ plaintiff placed reliance upon the case titled “Muhammad Sattar and others Versus Tariq Javaid and others” (2017 SCMR 98) and maintained that both the courts below completely ignored and failed to appreciate that the said agreement to sell was bearing the thumb impression of petitioner/plaintiff/ vendee, which was equivalent to signature; further added that the learned courts below misapplied the principle laid down in Farzand Ali’s case (supra), therefore, both the judgments/decrees are liable to be set aside.

5.Conversely the learned counsel for respondent/defendant supported the impugned judgments and claimed that a unilateral agreement does

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not carry any legal sanctity, as such present petition merits dismissal.

6.Arguments heard. File perused.

7.The controversy requiring determination is whether the plaint could lawfully be rejected under Order VII, Rule 11 of C.P.C. merely because the agreement to sell relied upon by petitioner/plaintiff did not bear his signature notwithstanding the presence of his thumb impression. I have carefully perused the copy of agreement to sell dated 27.01.1999. Thumb impression thereupon of Gul Muhammad- petitioner/plaintiff was visible even to nude eye. The word “sign” has been defined in Section 3(52) of General Clauses Act, 1897 as under:-

Sec. 3(52).

“sign”, with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include “mark”, with its grammatical variations and cognate expressions.

According to above definition, “sign” shall also include “mark” of a person, who is unable to write his name. The word “mark” is of much significance. It shall also cover “thumb mark/print”. Thumb impression/mark is legally equivalent to signature, rather more authentic for executing documents, contracts and official works. Thumb impression and signature serve the same legal purpose of authenticating

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a document, though they are mechanically and forensically distinct. Law does not mandate that one must be used instead of the other, though institutional practices (like banks or land transfer deeds) may have specific preferences. Both are equally valid and carries the same binding power to show that a person agreed to a document. Both serve as proof of execution for contracts, deeds, property transfers and affidavits. A thumb impression is often used in the place of signature by individuals, who are illiterate, visually impaired or physically unable to write. Even otherwise a person is legally at liberty to use either a signature or a thumb impression/mark.

8.It is pertinent to mentioned that Hon’ble Supreme Court in Muhammad Sattar’s case (2017 SCMR 98) (supra) held that a valid contract could be oral or it may be through exchange of communication between the parties. Once an offer was communicated, the acceptance thereof could be expressed or implied. Such acceptance of offer would include accepting the consideration accompanying the offer or acting upon the said bargain. Formal signature of both or either of the parties was not a necessary requirement. All that was required was an offer and acceptance and consideration between the parties. Contract in general is not required to be reduced into writing (except where otherwise specifically provided by law) and the offer and acceptance could also be implied from the conduct of the

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parties in terms of sections 8 and 9 of Contract Act, 1872. Absence of formal signature do not affect the validity or enforceability of the contract.

9.In the said Muhammad Sattar’s case agreement to sell immovable property was not signed by the vendee like the case in hand. Further observed by Hon’ble Supreme Court that existence and validity of the agreement and it being specifically enforceable or otherwise would depend upon the proof of its existence, veracity and enforceability in accordance with the Qanun-e-Shahadat Order, 1984, the relevant provisions of Contract Act, 1872, the Specific Relief Act, 1877 and any other law applicable thereto. In the said Muhammad Sattar’s case (2017 SCMR 98), Farzand Ali’s case (PLD 2015 SC 187) was discussed and got distinguished.

Material facts of Farzand Ali’s case (supra) are different from the facts of the present case. It was not applicable to the set of circumstances of present case. Judgment in the Farzand Ali’s case was rendered on different premises, as such it was misapplied by courts below.

10.When the execution of a document is denied in the Court, the parties relying on it must be given opportunity to prove that the thumb impression thereupon belong to the person who denies the same. The contents of the plaint manifested that petitioner/plaintiff has disclosed therein a valid cause of action, for the determination of which recording of

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evidence and deeper judicial scrutiny in the shape of full fledged trial is required.

11.Both the courts below erred in law while dilating upon said aspect of the matter, hence committed serious irregularity, rather illegality by misapplying the provision of Order VII, Rule 11 of C.P.C.

12.In sequel to the above discussion, the judgments/decrees passed by both the courts below are not sustainable. Therefore, I accept the present petition and set aside the judgment/decree dated 17.12.2015, passed by learned trial court as well as judgment/decree dated 01.03.2016, passed by learned Additional District Judge. Case is remanded to the learned trial court for decision afresh in accordance with law as well as observations rendered herein above. The learned trial court shall expedite the matter and finally disposed of the suit within six months from the date of receipt of this judgment.

13.Petition accepted. Case remanded.

(Tanveer Ahmad Sheikh) Judge

APPROVED FOR REPORTING.

Judge

*Shahzad Ahmad Nasir*