' The suit of respondent, on the basis of promissory note, dated 28-3-1996 for an amount of Rs,4,00,000 was decreed against the appellant vide judgment and decree, dated 25-2-2005.
Appellant through instant appeal has ( tiled in question the decree, dated 25-2-2005.
2. Learned counsel for the appellant has submitted. That the promissory note (Exh. P-1), is signed by Muhammad Akram son of Chiragh Muhammad as witness. A promissory note, which is signed by a witness ceases to be a promissory note. Summary proceedings on the basis of such document under Order XXXVII, C.P.C. Are not competent. Learned counsel in support of this contention has placed reliance on the case of "Keshari Chand Surana and others v. Asharam Mahato" AIR 1916 Cal.
888 and "Malik Muhammad Akram v. Khuda Bakhsh" 2000 CLC 759. He argued further that promissory note is insufficiently stamped, stamps of the value of Rs,60 (Sixty rupees) were to be affixed but the promissory note is stamped to the tune of Rs,52 (fifty two rupees). The document is inadmissible in evidence. Case of "Ramdeo v. Gulabchand" AIR 1958 Rajasthan 183 was referred in this respect. The Court has decreed the suit on the basis of insufficiently stamped document, which is inadmissible in evidence. A document bearing deficient stamp duty can neither be legally admitted in evidence nor used to corroborate oral evidence. Learned counsel in support of this contention has referred to the cases of "Sohanlal Nihal Chan v. Ranghu Nath Singh" AIR 1934 Lah.606, "Firm Sri Chan Sheo Parshad v. Lajja Ram" AIR 1939 Lahore 31 and "K.M. Munner v. Mirza Rasheed Ahmad" P11) 1963 Kar.
905.
3. Learned counsel for the respondent on the other hand has contended that insufficiency of stamp, do not render the document as void or inadmissible. At the most, a direction to make the deficiency can be given. In the instant case the deficiency was of meagre amount of Rs,8 (eight rupees) only. Learned counsel has agued further that the promissory note according to the provisions of sections 33 and 35 is valid document and the decree was rightly passed. It was lastly contended that once a document is admitted in evidence and is duly exhibited then the objection to its inadmissibility is of no avail at a later stage. Case of "Muhammad Ashiq and another v. Niaz Ahmad and another" PLD 2004 Lahore 95 was referred in support of this contention. Learned counsel has then argued that document once admitted in evidence, even if not admissible by virtue of section 35 of the Stamp Act could not be challenged at subsequent stage of the same suit. The document which is admitted in evidence cannot be called in question at any stage of the suit or proceedings on the ground that it was not sufficiently stamped except under section 61 of the Stamp Act, 1981. Learned counsel in support of his contentions has referred to the cases of "Munir Ahmad Kahloon v. Rana Muhammad Yousaf' PLD 2003 Lahore 173, "Farid Alchi, ul- Hadi v.
Muhammad Latif Ghazi" 1993 CLC 2105 and "Muhammad Ashiq and another v. Niaz Ahmad and another" PLD 2004 Lahore 95. It was lastly argued by the learned counsel for the respondent that the document in question, is a promissory note for, provisions of Negotiable Instruments Act, the attestation of such document by witnesses, does not change its nature.
4. Heard learned counsel for the parties and peru sed the record.
5. It is an admitted fact that during the course of recording of evidence the promissory note was admitted in evidence as Exh.P-1, without any objection. Once such document is admitted in evidence, the same could not be called in question subsequently on the ground that it was not duly stamped. The only course available to call in question the document, which has been admitted in evidence is to challenge the same under section 61 of the Stamp Act, 1899. If any case law is needed reference can be made to Muhammad Luqman's case PLD 1994 Karachi 492, "Messrs Rasheed Ullah v. Punjab Province and others" 1995 CLC 1914 and "Muhammad Ashiq and another v.
Niaz Ahmad and another" PLD 2004 Lahore 95. It is reflected from the provisions of section 36 of the Stamp Act that a document even if deficiently stamp can be admitted in evidence. Learned counsel for the appellant has failed to challenge the impugned promissory note under the provisions of section 61 of the Stamp Act and as such cannot be called in question at this stage.
Promissory note as defined in section 4 of the Negotiable Instruments Act, 1881 is required .Ender law to be an instrument in writing wherein there is:---
(i) Unconditional undertaking to pay.
(ii) Sum must be a sum of money and certain.
(iii) The payment is to the order of a person who is c( Lain or the bearer of instrument and
(iv) The maker has signed it.
6. If these conditions are present in a document it becomes a promissory note. The mere signing of such document by a witness does not change the nature of the document. Any document or instrument which contains the aforementioned conditions, is a promissory note. The provisions of Negotiable Instruments Act, 1881 nowhere stipulate that if an instrument is signed by witnesses becomes void or loses its significance as a negotiable instrument. The judgments referred to by the learned counsel for the petitioner AIR 1996 Calcutta 888 (supra) is not relevant in the instant case firstly for the reason that the instrument subject-matter of the said judgment was a "Hundi" and not a promissory note and secondly the provisions of Article 17(2) of the Qanun-e-Shahadat Order, 1984 provide for attestation of a document by two witnesses.
7. Although the promissory note Exh.P-1, is not sufficiently stamped, since it has been admitted in evidence during the course of recording the evidence, without any objection therefore cannot be called in question subsequently. Such document can legally be considered and read in evidence.
Learned trial Court has rightly decreed the suit on the basis of Exh.P-1. We do not see any infirmity in this respect. Negotiable instrument which is once admitted in evidence, is subject to challenge only, under the provisions of section 61 of Stamp Act, 1899 and not otherwise.
8. For the foregoing, we do not see any merit in the instant appeal, do not see any justification to unsettle the judgment which has been passed on sound legal basis. There is no infirmity or illegality in the impugned judgment and decree. The appeal is accordingly dismissed with no order as to costs.