Gul Hameed and Amjad Khan jointly instituted suit against Zulfiqar Ali Jadoon for recovery of Rs, 65000/- allegedly paid to the defendant by Gul Hameed Plaintiff No, 1 on 20.7.2002, and for recovery of Rs, 45000/-allegedly paid by Amjad Khan Plaintiff No, 2 to the defendant. It was alleged by them that the pro-note and the agreement deed were scribed by the defendant and it was promised by the defendant that the amount in question would be paid upto 20.10.2002 which he had not paid. Hence, the suit.
2. The defendant contested the suit, statement of Zahoor Ahmad Tanoli Advocate, Notary Public, regarding the pro-notes Ex.P.W. 1/1 and Ex.P.W. 1/2 was recorded, who produced his register also and the extract of the same was produced Ex.P.W. 1/3. The Notary Public found his signatures on the documents, including the agreement deed Ex.P.W. 1/4, as correct. He was cross-examined in length.
Aqeel Shahzad, Stamp Vendor, was examined as P.W.
2. Asif Khan appeared as P.W. 3, Gul Haneef was examined as P.W. 4, the statement of Amjad Rehman was recorded as P.W. 5 and then the evidence of the plaintiff was closed. The defendant appeared as D.W. 1' and closed his evidence.
Ultimately, the learned Addl. District Judge, Abbottabad granted a decree, as prayed for, in favour of the plaintiffs against the defendant with costs. It is worth mentioning at this stage that the prayer of the plaintiffs for the, recovery of the mentioned amount also contained request for profit till the payment of the amount in question alongwith the costs of litigation.
3. The learned counsel for the appellant referred to Section 35 of the Stamp Act and contended that the documents were not admissible in evidence because these were not properly stamped.
He also contended that no decree could be passed on the basis of insufficiently stamped documents. He also argued that it was not proved on record that any amount was paid by the Plaintiffs Nos, 1 and 2 to the defendant and documents without any consideration did not entitle the plaintiffs to claim anything from the defendant. He relied on 2000 CLC 759, PLD 1995 Lahore 395 and 2005 YLR 2614. He further contended that there was no stipulation in the alleged documents regarding interest arid, therefore, profit or interest could not be granted on the basis of the said documents. He relied on 1987 K.L.R. (Civil Cases) 463 in support of this contention.
4. The learned counsel for the respondents, however, referred to PLD 1978 S.C. 279 and PLD 2003 Lahore 173 and contended that the payment of stamp duty was not a question between the parties, rather it was in between the State/Government and the party who was to use deficiently stamped document. He contended that the Court could order the respondents to make up the deficiency at any time and the respondents were ready to do the same. He further contended that the plaintiffs had sufficiently proved the payment of amounts to the defendant and the defendant was unable to show at any time that the documents in question were taken from him without any consideration.
5. The learned counsel for the appellant referred to Section 17 of the Qanoon-e-Shahadat, 1984 as well as to Section 79 thereof and contended that the documents were not properly proved as only one witness, namely, Asif Hussain was produced while the other witness, namely, Abdul Malik Khan was not so produced to support the documents inspite of the fact that he was available at Abbottabad. The learned counsel for the respondents contended that Abdul Malik Khan was not willing to record his statement in favour of any of the parties as he was the near relative of the defendant/appellant and, at the time of scribing the document, Abdul Malik Khan had appeared on behalf of the defendant while Asif Khan had appeared on behalf of the plaintiffs, and thus two witnesses were provided to the document. He further contended that the scribe of the document was produced as witness who recorded his statement in support of the scribing of the documents at the instance and in the presence of the defendant. He relied on 2002 YLR 1468 in support of his contention to the effect that the scribe was to be considered as the second witness for the purposes of Sections 17 and 79 of the Qanoon-e-Shahadat, 1984.
6. I evaluated the arguments of the learned counsel for the parties in the light of record. It is not a dispute between the parties whether the documents are sufficiently or deficiently stamped. It is the duty of the Courts to recover the taxes and duties of the State/Government, whenever a litigation is brought before such Courts for the purposes of resolution/decision and the Court is of the opinion that the taxes or duties had to be paid to the State Exchequer but have not been paid. I, therefore, order the plaintiffs/respondents to make up the deficiency of the stamp duty within the next one month, which, if not paid, will be recoverable from them as arrears of land revenue.
7. The scribe and a marginal witness of a deed, when they appeared as witnesses, made up the requirement of Sections 17 and 79 of the Qanoon-e-Shahadat, as has been done in this case. The scribing of the documents has been proved to which the defendant/appellant was a party. It has never been the case of the defendant that no consideration was paid to him and the documents in question were obtained from him without any consideration. In fact, he had refuted the genuineness of these documents.
8. The learned counsel for the plaintiffs/respondents referred to Section 79 of the Negotiable Instrument Act, 1881 and contended that 6% interest was to be paid to the plaintiffs, if no other rate was specified in the documents.
9. The learned Addl: District Judge has properly appreciated the evidence and has correctly come to the conclusion, arrived at by him through the impugned judgment and decree. No interference is required with the same in the circumstances of this case. I, therefore; maintain the impugned judgment and decree with further clarification that interest/profit shall be paid by the present appellant to the plaintiffs/respondents on the amounts of Rs, 65000/- and Rs, 45000/- from the date of their delivery to the defendant to the date of repayment at the rate of 6% per annum along with the cost of litigation throughout.
10.Finding no merit in the present appeal, it is dismissed in the light of the above.