' This appeal assails judgment and decree dated 10-1-1998 passed by the Additional District Judge, Lahore decreeing suit of the respondent under Order XXXVII, rule 2, C.P.C. To the extent of Rs.50,000.
2. Precisely facts relevant for disposal of instant appeal are that respondent No.1 filed a suit under Order XXXVII, rule 2, G.P.C. With the averments that he is running a business of electric goods in the name and style of Tower Enterprises at 14-A, Shah Alam Market, Lahore. Appellant is also carrying on his business in the same market who, according to the respondent, came to him and demanded Rs.50,000 as loan, which was provided by the respondent vide a promissory note dated 30-1-1994 and receipt of the even date. Both these pronote and receipt, were duly thumb marked by the appellant but on demand by the respondent regarding return of advanced money, appellant refused repayment which necessitated filing of suit.
3. Appellant being a defendant in the suit on receipt of notices, moved an application seeking leave to defend the suit, which was ultimately granted and written statement was filed by him.
Controversial pleadings of the parties necessitated framing of six issues, where over parties led their respective evidence and Additional District Judge who was seized of the matter, vide his judgment and decree dated 10-1-1998 granted the respondent a decree for Rs.50,000 as prayed by him. Appellant has now come up in appeal before this Court for setting aside the judgment and decree passed by the trial Court.
4. Learned counsel for the appellant submits that Revenue stamps affixed on the pronote were not scored of and thus the promissory note was not admissible in evidence and thus could not be made basis for the decree granted by the trial Court. He further submits that no payment under the pronote or the receipt was proved and thus the trial Court has incorrectly decreed the suit of the respondent. In support of his arguments, he relied on Mirza Arif Baig v. Mubarik Ali PLD 1992 Lah. 366 and United Bank Ltd. v. Mian Abdul Khaliq PLD 1988 Lahore 225.
5. Learned counsel appearing on behalf of the respondent has not only refuted the submissions of the appellant, but has also supported the judgment of the trial Court and has referred to judgment in the case bf Munir Ahmad Kahloon v. Rana Muhammad Yousaf PLD 2003 Lahore 173 to urge that mere non-scoring of Revenue stamps does not invalidate the pronote and on this ground respondent could not have been non-suited. He further submits that payment of stamp duty was a matter between the citizen and the State, which should not be allowed to be used as a weapon. He also elaborates his arguments by saying that execution of the pronote and receipt and payment of money thereunder was proved beyond any shadow of doubt and thus the trial Court has rightly granted the respondent the decree prayed for.
6. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record. Undeniably the pronote carries correct number of Revenue stamps, over which appellant has himself signed, making them unfit for reuse. Pronote in question (Exh.P.2) does not only bear thumb impressions of the appellant but also has on two places, on the face of it, his signatures. Likewise receipt (Exh.P.1) has two signatures of the appellant, one on the Revenue stamps and the other over his name and address besides his thumb mark. Under law, purpose of scoring of the Revenue stamps is only to avoid its reuse. Section 12(2) of the Stamp Act, 1899 provides that instrument would be deemed to be unstamped only to the extent of stamp which has not been cancelled, which could be done by drawing a line and if the pronote in hand looked from the touchstone provided by this provision of law, 21 stamps of the value of 40 paisas each will be considered to have been unstamped because on the remaining stamps appellant has himself inscribed his signatures. In a similar case of Munir Ahmed Kahlon (supra) a Division Bench of this Court took the view that non-scored stamps can be deemed to be unstamped but at the same time, it was held that the pronote could be admitted in evidence on payment of penalty provided under law but it could not be held that pronote in question is invalidated, which could result in rejection of claim of the plaintiff. A view with regard to payment of stamp duty was taken that it was between a citizen and the State and thus is not fatal to the suit. From the proceedings of case in hand, it appears that both the documents Exh.P.1, and Exh.P.2 (receipt and pronote) were tendered in evidence during the statement of D.W.2 and appellant did not object to admissibility of those documents on any of the grounds including scoring of the stamps, thereon. This objection also does not appear to have been raised at the time of hearing of the suit by the Additional District Judge. Appellant, who signs in English, appears to be a literate person, took up the plea in his written statement that he signed the pronote and receipt as a marginal witness and pleaded that loan amount was received by one Syed Akhtar Alam son of S.M. Ali. Though this Syed Akhtar Alam has not been produced in the witness box by the appellant yet both the documents Exhs.P.1 and P.2, show that appellant did sign and thumb mark these documents as a loanee, I am not ready to accept explanation of the appellant that these documents were signed by him as a marginal witness because a literate person, like the appellant, could not have signed In both the places by thumb mar Kin both these documents and say that he iinged it as a marginal witness.
Above all, Syed Akhtar Allam who, according to the appellant, received the loan amount, is not party to both these documents which, on the face of the record, appears to be a false concoction of the appellant.
7. 1 following argument from the judgment in the case of Sirbaland v. Allah Loke and others 1996 SCM R 575, wherein. The Honourable Supreme Court of Pakistan while interpreting sections 35 and 36 of the Stamp Act, 1899. Held that unstamped or improperly stamped instruments are not invalid documents but are only subject to disabilities specified in section 5 of the Act, removable in the manner prescribed therein, hold that stamp affixed on the receipt and pronote (Exhs. P.1 and P.2) .
Cannot be reused yet had the appellant objected to these documents at proper time those could have been impounded by the Court. At this stage, appellant cannot be allowed to be benefited of his own lapse. Recovery of stamp duty even otherwise, being a matter between a citizen and the State, I do not allow it to be used by the appellants, as a weapon against the respondent. Especially viewing the admission of the appellant himself in his written statement that loan money was paid under the pronote and non-denial of his signatures there over. I find that his objection of non- scoring the stamps is only of technical nature, otherwise it has no worth in it.
8. For what has been discussed above, I find that the learned trial Judge has rightly granted the respondent No.1 the decree prayed for, which is strictly in consonance with the evidence on the file.
Jurisdiction vested in the Court below is not proved to have been exercised arbitrarily or fancifully.
Thus there is no merit in this appeal, which is dismissed leaving the parties to bear their own costs.