1. ' This second appeal is filed against the judgment dated 4th October, 1978 of learned Additional District Judge, Hyderabad, whereby appeal filed against the order of ejectment under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 has been dismissed.
2. ' Brief facts giving rise to this appeal are that Mst. Phool Bano respondent/applicant (hereinafter to be referred as landlady) filed application for ejectment against M/s. Yakoob Associates appellant/opponent (hereinafter to be referred as tenant) from disputed premises, which is a shop No, 1856/19 situate in Saeed Market Tilk Incline, Hyderabad on the ground of default in payment of rent. Parties had executed lease-deed which was operative from 1st April 1975 to 26th February 1976 and according to it rent at the rate of Rs, 75 was payable on the first of each calendar month. It is the case of the landlady that tenant is defaulter and had paid rent for August, September and October 1976 on 2nd November 1976, which was accepted on the assurance of the tenant that he would be prompt in payment of rent and would abide by the terms of the lease-deed but again he defaulted and did not pay rent with effect from 1st November 1976 for three months till the filing of application. In the written objections the tenant has denied allegation of default and stated that condition in the lease-deed with regard to the payment of rent on 1st of each calendar month was varied by oral agreement as such rent was payable by 5th of every calendar month and as per practice husband of the landlady used to come and collect the rent and as he did not come, the tenant sent the rent by cheque which was refused then he sent the rent by money order which was also refused. It is also alleged by the tenant that husband of the landlady wanted to execute fresh lease-deed with enhanced rent, which was declined by the tenant, hence non-collection was deliberate to create a ground for ejectment.
3. ' On behalf of the landlady her husband Mohomed Ramzan was examined. He produced general power of attorney. Fazal Khan Rent Collector was also examined. On the other side Haji Mohd.
4. Yaboob owner of the tenant firm examined himself. The learned Rent Controller believed the evidence produced on behalf of the landlady and held that default is proved for the reason that rent for three months, i,e, November and, December 1976 and January 1977 was tendered in February 1977 by way of cheque and money order which were returned. Plea of tenant that husband of landlady did not come, hence he had to send the accumulated rent was not accepted on the ground that the said Ordinance imposes no obligation on the landlord to find tenant and collect rent from him but it is the duty of the tenant to pay rent to the landlord himself regularly.
5. Reliance was placed on PLD 1973 Kar.
56. Consequently ejectment was granted, which was affirmed in appeal before learned Additional District Judge.
6. ' Before me it is urged on behalf of the appellant that legal point involved in this second appeal is that the two Courts below have committed a patent error in admitting in evidence lease-deed and relying upon it when initially objection was taken in respect of it that it was under-stamped, in consequence whereof it was impounded by the Rent Controller as such tinder section 35 of the Stamp Act, 1899 it could not be admitted in evidence for any purpose. It was also contended that the Rent Controller had no legal authority to exhibit this document as Exh. 28 and act upon it in view of the bar stated above and the Court was not competent to determine the value of penalty when under sections 31 to 35 of the Stamp Act it is the exclusive function of the Collector to adjudicate upon this matter and issue a certificate. In view of these submissions it was further contended that if the lease-deed is taken out of consideration, then tenant could be obliged to pay rent in the absence of agreement within sixty days from the period for which rent is payable as required under section 13 (2) (1) of the said Ordinance and this being the position rent for November, 1976 would be payable after 60 days on 1st February 1977, when application for ejectment was filed before that date on 24th January, 1977 on which date it was premature as there was no cause of action. In these circumstances no default was committed by tenant and order of ejectment on this ground is illegal and is liable to be set aside.
7. ' I shall take up these objections one by one. With regard to this lease-deed, record of the Rent Controller shows that it is mentioned in the application for ejectment and its photo stat copy was produced. It is executed by Mst. Phool Bano as lessor and Haji Yakoob as lessee on 3rd April 1975, to be valid till 28th February 1976, providing tenancy rights for 11 months on monthly rent of Rs, 75 payable on 1st of every month. Execution of this lease is not denied in the written objections filed by the tenant. Subsequently during recording of evidence this lease-deed was sought to be produced in evidence by Muhammad Ramzan, husband of the landlady but objection was raised by the counsel of tenant that it was under stamped as such it was not admissible and a request was made to impound the said document, hence the counsel of the landlady changed his mind and did not produce it in evidence and it was not exhibited. Further it appears that Mohd. Ramzan deposed about the contests and execution of this document and it was kept on the record though not formally exhibited. Subsequently after the close of evidence of landlady D.W. 1, Haji Mohd.
8. Yakoob tenant was examined and in his cross-examination this lease-deed was shown to him to confirm whether it bore his signature to which he replied in the affirmative. At that stage again objection was raised by Mr. Kishanchand that document was not properly stamped upon which the learned Rent Controller ordered that the lease-deed is stamped for Rs, 5 only it was impounded ten times the deficiency plus deficit. Thereafter the document is shown to have been produced by the tenant Haji Mohamed Yakoob as Exh. 28, who is appellant in this second appeal and objection is raised on his behalf that it should not have been exhibited by the Court. Be that as it may but now since this objection is raised, which is merely technical in nature, it has to be examined in the light of legal position, which governs it.
9. ' Section 35 of the Stamp Act, 1899 (hereinafter to be referred as the said Act) provides that :- ' No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped."
10. ' Provided that-
(a) any such instrument not being an instrument chargeable with a duty of one anna (or half an anna) only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion ;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it ;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped ;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 ;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of (the Government) or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.
11. ' The reading of this section quoted above shows that the intention of the Legislature is not to make the instrument invalid for all intents and purposes simply for the reason that it is not paid with duty or is under-stamped and on that account cannot be admitted in evidence at all because provisos to this section indicate that in certain cases exceptions can be made and instruments such as bill of exchange or promissory note can be admitted in evidence subject to all such exceptions on payment of duty and penalty as specified in proviso (a). Unstamped receipt can also be admitted in evidence on payment of penalty. Criminal Courts have been empowered to admit in evidence such instruments and then documents executed on behalf of Government are allowed to be admitted in evidence. Section 36 of the said Act further provides that where an instrument has been admitted in evidence, such admission shall not, except as provided in 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. Section 61 relates to the powers of Civil, Revenue or Criminal Courts admitting instruments in evidence as duly stamped or on payment of duty and then sending such declaration to the Collector. Further section 33 clearly provides as under :- '(I) Every person having by law or consent of parties authority to receive evidence and every person in charge of a public office, except an Officer of Police, before whom any instrument, chargeable in his opinion. With duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in (Pakistan) when such instrument was executed or first executed : ' Provided that-
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXX VI of the Code of Criminal Procedure, 1898 ;
(b) in the case of a Judge of High Court. The duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt,-
(a) (the Provincial Government) may determine what offices shall be deemed to be public offices ; and
(b) (the Provincial Government) may determine who shall be deemed to be persons in charge of public offices.
12. ' As regards how the instruments are to be stamped powers of adjudication are given to the Collector as under section 31 and he is required to give certificate of duty to be paid as provided in section 32. In this view of the matter it cannot be said that requirement of section 35 of the said Act can be stretched to the extent to say that particular instrument is not stamped as such and is rendered absolutely invalid for all intents and purposes just because it is not stamped or under- stamped, such defect in the instrument is curable under the said Act because the intention behind the said Act is to protect public revenues only and that can be achieved when the duty is paid or deficit is made up as provided under the said Act. In this context reliance is placed on case of Union Insurance Company v. Hafiz Mohammad Siddik (1). Relevant portion from the judgment of the Supreme Court at page 284 is reproduced as under :- ' I would now examine section 35 in some detail. It prescribes that no instrument, which is not properly stamped, shall be admitted in evidence for any purpose or shall be acted upon "Now merely because an instrument cannot be admitted in evidence for any purpose as because it cannot be acted upon by the persons specified in the section, does not mean that such an instrument is invalid, and it is not irrelevant to observe here that the words which I have quoted have to be construed strictly, because they are to be found in a provision of a penal nature.
13. Therefore, it would be against all cannons of construction to enlarge the meaning of these words, so as to render invalid instruments which fall within the mischief of the section. After all instruments, which are not duly stamped, are executed every day, but I venture to think that most persons, who incur obligations under such instruments, honour their liabilities under such instruments, regardless of the 'provisions of section 35. In any event, this section is attracted only when an instrument is produced before the persons specified in the section. But, for example, an instrument would be produced in evidence only when there is a dispute about it, therefore, if the intention of the Legislature had been to render invalid all instruments not properly stamped, it would have made express provision in this respect, and it would also have provided some machinery for enforcing its mandate in those 'cases in which the parties did not have occasion to produce unstamped instruments before the persons specified in the section. Additionally, I find nothing in the section which would support the appellant's plea that an instrument becomes invalid, if it falls within the mischief of the section. After all, if an instrument is invalid, it must be invalid for all purposes, but proviso (d) to the section expressly saves unstamped instruments in most criminal proceedings, whilst the other proviso to the section enable the parties to overcome the disabilities attached to an instrument not properly stamped by paying the requisite duty together with a penalty therefor, this would suggest that the object of the section is to protect public revenue. Again, if an instrument is invalid it should not be admissible in evidence, and it is so stated in section' 35, but the next section prescribes that if an instrument has been admitted in evidence however erroneously, its admissibility cannot be questioned at any stage thereafter and even the appellate Court's powers to entertain an objection about the admissibility of documents have been removed by section 61, which instead empowers the appellate Court to collect the ,duty payable on the unstamped instrument together with a penalty, These provisions as well as other provisions in Chapter IV of the said Act, such as (1) P D 1978 SC 279 sections 33, 38, 39 and 40 can only lead to the conclusion that the object of the Legislature in enacting the said Act was to protect public revenues and not to interfere with commercial life by invalidating instruments vital to the smooth flow of trade and commerce.
14. Furthermore in the instant case both parties have relied upon this document which is lease-deed, its execution is admitted by both the parties. Insufficiency of stamp on it is technical objection, even that has been complied with and after the orders of the Court the matter was referred to the Collector as informed by the learned counsel for the respondent and the deficit and penalty were paid and certificate of the Collector was obtained on 13th August, 1977 as per Receipt No, 52 dated 13th August, 1977 learned counsel for the appellant, pointed out that declaration of the Collector was obtained after the order of ejectment was announced by the learned Rent Controller on 7th August, 1977 but that does not matter for the reason that document in question was already admitted in evidence and the Court was competent to do as stated above.
15. ' The second objection with regard to the fact that Court was not competent to determine the value of penalty also stands answered as stated above that certificate of the Controller has been obtained and this objection would not affect the admissibility of the document in question in evidence. The last contention was that if this document i,e,, lease-deed is taken out of consideration, then tenant would get the benefit of making payment of rent within 60 days from the period for which rent was payable and the application for ejectment was premature. This contention was available to the appellant if the lease-deed is excluded from consideration but since it is held that lease-deed was properly admitted in evidence and acted upon, this, contention fails automatically.
16. ' For the facts and reasons stated above, it is concluded that default was committed and order of ejectment was proper as such there is no ground for interference with the impugned judgment and the appeal is dismissed with costs. Appellant is directed to hand over vacant possession of the demised premises to the respondent within four months from today and pay rent regularly for this period and if he commits default he would be liable to ejectment forthwith before the expiry of grace time allowed by the Court.