MIAN SAQIB NISAR, J.---The suit for the recovery of an amount of Rs. 5,50,000/-, based upon a promissory note, filed by the appellant against the respondent under the provisions of Order 37 CPC, has been dismissed by the learned Trial Court vide judgment and decree dated 22.01.2002.
2. The facts of the case are that under the provisions of Order 37 CPC, the appellant sought the recovery of an amount of Rs. 5,50,000/- from the respondent on the basis of a pronote dated 05.11.1997 (Ex.P.1) corroborated by the receipt (Ex.P.2). The respondent filed the application for leave to appear and defend, in which he denied having received any loan from the appellant as alleged in the plaint, the execution of the pronote, and also took up the plea that the pronote is deficiently stamped, therefore, no suit can be based thereupon. The leave was granted; the respondent filed the written statement, reiterating the same defence; out of the pleadings of the parties, the following issues were framed:--- ISSUES:---
(1) Whether the suit is barred by time? OPD.
(2) Whether the promissory note in dispute is deficiently stamped, if so its effect? OPD.
(3) Whether the promissory note was required to be presented before the Notary Public for getting a certificate "noted" and "protest". If so, what is the effect of its non-presentation before the Notary Public? OPD.
(4) Whether the defendant obtained interest free loan of Rs. 5,50,000/- from the plaintiff on 05.11.1997 at Lahore and executed a promissory note in favour of the plaintiff? OPP.
(5) Whether the promissory note in dispute is an outcome of fraud and forgery? OPD.
(6) Relief.
3. The parties were put to trial, the Trial Court was pleased to return its findings on issue No. 4 in favour of the plaintiff; issues No. 1, 3 and 5 were decided against the respondent/defendant, whereas, on issue No. 2, it was held that the pronote (Ex.P. 1), required the stamps of Rs. 100/-, but only contains stamps worth Rs. 45/-, therefore, being inadmissible under Section 35 of the Stamp Act, 1899, read with proviso (a) thereto, no suit could sustain on the basis of such a pronote, thus, the learned Judge, by relying upon a judgment reported as (AIR 1964 Asam 138), fortifying his view, dismissed the suit.
4. It may be pertinent to mention here that on issue No. 4, while examining the evidence on the record, the Trial Court has categorically held that the plaintiff/appellant has successfully discharged the onus of this issue and the defendant/respondent has failed to prove its otherwise, resultantly, the issue was answered in the affirmative. On issue No. 5 also, which is based upon the defence set out by the respondent regarding the fraud and forgery committed by the plaintiff in preparing the pronote, it is concluded that "It was also his claim that since he and the plaintiff had a joint business therefore, the plaintiff might have obtained his thumb-impressions and signatures in a deceitful manner. However, in order to substantiate his said claim he has failed to produce any evidence in support of his version so much so that he has himself failed to enter the witness-box, upon which his right of evidence was closed. Therefore, it could not be said that the promissory note in dispute was an outcome of fraud and forgery. The issue is thus answered in negative."
5. The appellant being aggrieved of the impugned judgment and decree has attacked the findings of the Trial Court on issue No. 2 only. Whereas, no cross-appeal/crossobjection has been filed by the respondent regarding the findings on the issues going against him; these findings have not even been orally challenged by the respondent's counsel during the hearing of the case, which obviously stand affirmed.
6. It has been argued by the learned counsel for the appellant that once a document/instrument, which is insufficiently stamped, has been rightly or wrongly admitted into evidence, its admissibility cannot be questioned at any subsequent stage of the proceedings or even' before the Court of appeal. He argued that Ex.P. 1 was produced and proved in the statement of Khalid Mehmood PW- 3/plaintiff, as Ex.P. 1 and was admitted in evidence without the objection regarding its admissibility raised by the respondent, therefore, in view of the provisions of Section 36 of the Stamp Act 1899, issue No. 2 had become redundant and the Trial Court could not have decided the same against the appellant. It is also submitted that the stamping of a document is a matter pertaining to the collection of revenue with which, the parties have no concern and, therefore, once a document has been admitted into evidence by the Court without any objection of the opposite side, such document cannot be ignored from consideration, as it forms part of the valid evidence. In support of his contentions, learned counsel has relied upon the following judgments:- Farid Akhtar vs. Muhammad Latif Ghazi (PLJ 1993 Karachi 375); Cap. (Retd.). Muhammad Arshad and another vs. Asad Munir and another (2003 YLR 2.955); Rehmat Ali vs. Wahid Bux (NLR 1979 Civil SC 809); Sardar Muhammad Ramzan vs. Muhammad Yahya Khan (2000 CLC 296); Abdul Hashem vs. Serajul Haque and others (PLD 1961 Dacca 596); Amin Jute Baling Co., Ltd. Vs. Aminpur Union Cooperative Muulti-purpose Society Ltd. (PLD 1961 Dacca 102); Muhammad Hanif vs. Kissan Dost (Pvt.) Limited ' (2003 CLD 224); Farid Akhtar Hadi vs. Muhammad Latif Ghazi (1993 CLC 2015); Samiullah vs. Muhammad Ahmed and 6 others (PLD 1977 Karachi 49); Eskandar Ali vs. Mst. Alhamra Begum and others (PLD 1969 Dacca 214); Ch. Muhammad Saleem vs. Muhammad Akram and others (PLD 1971 SC 516); Javer Chand and others vs. Pukhraj Surana (AIR 1961 SC 1655); and Mangala Lakshmappa vs. Pathala Masud Sahib (AIR 1934 Madras 700).
7. Conversely, the learned counsel for the respondent has argued that the negotiable instrument such as the pronote, which is insufficiently stamped, falls within the purview of proviso (a) to Section 35 of the Stamp Act, 1899, and such document cannot be impounded, therefore, under the main section, it is neither admissible in evidence, nor can be acted upon, and a suit based upon such a pronote, is liable to be dismissed. He has relied upon the following judgments:- Ganga Ram vs. Het Ram and others (AIR 1965 Rajasthan 47); Mian Sher Rehman vs. Muhammad Sharif Khan and others (PLD 1984 Peshawar 2); Shankar Dattatraya Prabhavalkar and others vs. Municipal Corporation of the City of Bombay and another (AIR (33) 1946 Privy Council 53); Chandra Sekhar Misra vs. Gobinda Chandra Das (AIR 1966 Orissa 18); Jatindra Mohan Deb Laskar vs. Khara Singh and others (AIR 1964 Assam 138); K.M. Muneer vs. Mirza Rashid Ahmed (PLD 1964 (W.P.) Karachi 172); and K.M. Muneer vs. Mirza Rashid Ahmad (PLD 1963 (W.P.) Karachi 905).
It is also argued that the respondent, right from the beginning in his leave application and also in the written statement, has taken the plea about the deficiency of the pronote and issue No. 2 was also framed on that account, therefore, notwithstanding that no objection was raised at the time when Ex.P. 1 was admitted into evidence, the objection about the admissibility was there in the form of an issue, and that the Court below, therefore, has rightly dismissed the suit of the appellant by returning findings on issue No. 2.
8. We had also appointed Syed Mansoor. Ali Shah, Advocate as the Amicus Curiae in this case to assist the Court on the point involved in the matter; according to him, two sets of the documents are envisaged by Section 35 of the Stamp Act; one, which a party wants to produce and tender in evidence for the purpose of proofing its case, and if such documents are deficiently stamped, those shall be inadmissible in evidence; and obviously the question of acting upon them does not arise; the impermissibility to act upon insufficiently stamped documents confined only to those which are placed before the Court not as the evidence in the case, but for some other purpose, such as a power of attorney by an agent, who appears to represent his principal and the power of attorney is inadequately stamped, the Court may refuse to act upon the same and disallow the agent's representation. But, if a document is once received in evidence by the Court, its admission cannot be called in question, as Section 36 provides a complete bar in this behalf, and the Court shall not refuse to read the document as a valid part of the evidence on the ground that it was inadmissible. In support of his view, the learned Amicus Curiae has made reference to Mt. Bittan Bibi and another vs. Kuntu Lal and another (AIR 1952 Allahabad 996); he has also cited the judgment reported as Muhammad Ashiq and another vs. Niaz Ahmad and another (PLD 2004 Lahore 95), and submits that in the said case, which has akin facts, a deficiently stamped pronote, when admitted into evidence, was refused to be questioned, on account of Section 36 of the Act.
9. We have considered the arguments of the learned counsel for the parties and the learned Amicus Curaie, and find that the following two are questions involved in the matter--
(i) If a promissory note, which is deficiently stamped, has been admitted in, evidence without any objection by the opposite party, whether the Court at the subsequent stage of the proceedings can exclude the document from the consideration on the ground of inadmissibility;
(ii) Whether the objection raised in the written statement about the deficiency of the stamps on a pronote, which has culminated into an issue, becomes redundant, when such pronote is admitted into evidence, without the objection of the opposite side.
According to the law, a deficiently stamped document including a pronote is not invalid, but the only vice and the disability attached to such a document under Section 35 of the Stamp Act, is about its inadmissibility in evidence or that it cannot be acted upon, unless duly stamped. Proviso
(a) to the section, however, provides the mechanism, as to how and subject to what conditions, the defect can be cured, but with the exception of certain documents including a pronote. This means that the defect of deficiency of stamps on a pronote is incurable and it remains to be inadmissible in evidence. This is the ultimate purport of Section 35 of the Stamp Act, when construed alongwith the first proviso.
10. The above section is followed by Section 36, which provides that "where an instrument has been admitted in evidence, such admission shall not, except as provided by Section -61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." This is a very comprehensive and a powerful provision with the command that if an instrument deficiently stamped is once admitted into evidence, except for the cases falling under Section 61, the admission of a document cannot be called into question. A deficiently stamped pronote is not covered by Section 61 and Section 36 by itself has not created any exception for such a pronote. In our view, Section 36 is mandatory in nature, which has the clear effect of overriding Section 35 and imposes a complete bar to question the admissibility of a document once it has been admitted into evidence rightly or wrongly and this includes all such documents falling under proviso (a) to Section 35.
11. The above view is fortified by the following case law:--- In Ch. Muhammad Saleem vs. Muhammad Akram and others (PLD-1971-SC-516), it has been held:- -- "Once a document has been admitted in evidence without objection, its admissibility cannot subsequently be challenged on any technical ground or any ground which does not affect the parties. The C.L.R. collection of revenue is no concern of the parties. There is no reason, therefore, as to why the bar created by section 36 should not be given effect to. Where the document was admitted, marked as an exhibit without any objection and then it was put to a number of witnesses in examination, and cross-examination' it was held that the objection on the ground of want of stamp could not be raised at any subsequent stage".
A Division Bench of the Sindh High Court, in the case reported as Samiullah vs. Muhammad Ahmad and 6 others (PLD-1977-Karachi-49), has relied upon the above judgment while holding:--- "Section 36 of the Stamp Act, 1899 is categorical in its terms and no limitation can be read into it more particularly as the limitation intended by the Legislature has been incorporated therein.
Stamping is a matter of revenue with which the parties are unconcerned and if the legislature in categorical terms states that once a document is admitted it cannot be questioned later on at any stage of the trial such categorical language must be given effect to. It is possible to take the view that if the property of section 35 was to impose a duty such a purpose must be given effect to and not allowed to be set at naught by section 36 but its effect being only limited to safeguarding revenue due to the State, it is a matter of no concern to the parties."
In another judgment cited by the learned counsel for the appellant reported as Cap. (Retd)
Muhammad Arshad and another vs. Asad Munir and another (2003-YLR-2955), a Division Bench of this Court, in the case of a pronote by examining the effect of Sections 36 and 61, has concluded:-- "Document was admitted in evidence without objection, therefore, provisions of S. 36 of Stamp Act, 1899, would come into play and defendants were debarred from calling in question the admission of the document except as provided in S. 61 of Stamp Act, 1899."
Same view has been expressed in the judgment reported as Farid Akhtar vs. Muhammad Latif Ghazi (PLJ1993-Karachi-375).
The Honourable Supreme Court, in the judgment reported as Rehmat Ali vs. Wahid Bux (NLR-1979- Civil-SC809), while considering the effect of non-cancellation of the stamps on a promissory note, which renders it deficiently stamped and thus inadmissible, has held:--- "An instrument which has been received in evidence in violation of section 12, such as in the instant case, could be admitted in evidence and under section 36 its admissibility would not be open to question."
In Sardar Muhammad Ramzan vs. Muhammad Yahya Khan (2000-CLC-296), Division Bench of the Peshawar High Court, has concluded:--- "Once a document was admitted to evidence without any objection, the same could not be questioned subsequently, on the ground that the document so admitted was not duly stamped or was under stamped."
Another Division Bench judgment reported as Abdul Hashem vs. Serajul Haque and others (PLD- 1961-Dacca596), is also worth consideration on the proposition, which provides:--- "The expression "admitted in evidence" in section 36 of the Stamp Act, 1899 does not mean admitted in evidence as a result of judicial determination of the question whether the document could be admitted in evidence or not for want of stamp. There is no warrant for introducing this limitation qualifying the plain language of the section which makes it reasonably clear that the instrument having once been admitted in any proceeding, whether wrongly or rightly, without objection or after hearing objection, it is available in that proceedings, for all purposes as if it had been properly stamped from the outset. The proceeding will go through a valid termination and cannot afterwards be challenged for want of jurisdiction merely by reason of non-compliance with the provisions of the Stamp Act, 1899. The question in such cases is whether the document has been admitted and not whether it was admitted after a special objection relating to the sufficiency of stamp was taken and determined."
In a Division Bench judgment of this Court reported as Muhammad Hanif vs. Kissan Dost (Pvt.)
Limited (2003-CLD224), it is held:--- "As the pronote was admitted in evidence without objection by the defendant at the relevant time the same could not be kept out of consideration at the time of deciding of appeal."
In another Division Bench judgment reported as Muhammad Ashiq and another vs. Niaz Ahmad and another (PLD-2004-Lahore-95), considering the effect of insufficiently stamped promissory note, which was admitted into evidence without objection, it was held that "Section 36 prevented to call in question the inadmissibility and, therefore, the promissory note should be considered and read into evidence."
12. As against the above view, the judgments cited by the learned counsel for the respondent do not cater for the questions involved in the present appeal. The ratio of the said judgments is, that an insufficiently stamped pronote shall be inadmissible in evidence, it cannot be made admissible by impounding and paying the penalty, and the suit based upon such a pronote should be dismissed. But C.L.R. none of these dictums answer the key question about the effect of Section 36 of the Stamp Act.
13. From the plethora of the judgments cited by the appellant's side, we are of the considered view that the provisions of Section 36 are mandatory and once a document including an insufficiently stamped pronote, is rightly or wrongly admitted in evidence and is marked as an exhibit, it is impermissible for the Court of first instance, or in appeal or revision etc, to reject and exclude from its consideration such document. Such document shall be read as a valid piece of evidence, notwithstanding its deficiency. Therefore, in the facts and circumstances of the case, which have been narrated above, the promissory note, when forming part of the evidence as Ex.P. 1 without any objection of the respondent's side, had to be read into evidence and in such a situation, the issue No. 2 became redundant and the Court below could not have answered the same in favour of the respondent and as a consequence thereof, dismissed the suit. This is the answer to both the questions formulated above. Resultantly, by allowing this appeal, the findings of the Trial Court on issue No. 2 are reversed and the impugned judgment and decree is set aside, however, the findings of the Trial Court on the other issues are maintained, and a decree is passed in favour of the plaintiff and against the respondent for the suit amount.
14. Before parting, we appreciate the valuable contentions made by the learned Amicus Curiae, who has skillfully drawn a subtle distinction and elucidated the meanings and objects of the expression "inadmissibility" and "acted upon" used in Section 35. However, in our view as the present appeal is being decided on different point, therefore, we find it expedient to dilate upon the said plea in some other appropriate case.
In the light of above, as mentioned above, this appeal is allowed. .