' ABDUS SATTAR ASGHAR, J.-- The judgment and decree dated 8-5-2003 passed by the learned Additional District Judge, Chishtian, whereby appellant's suit for recovery of Rs,1,50,000 on the basis of pro note and receipt dated 12-12-1997 was dismissed is assailed through this regular first appeal.
2. Brief facts leading to this appeal are that Manzoor Ahmed lodged a suit for recovery of Rs,1,50,000 on the basis of pro note and receipt dated 12-12-1997 against Qamar ul Zaman under Order XXXVII, Rules 1 and 2, C.P.C. With the assertions that defendant borrowed a sum of Rs,1,50,000 as loan from him on 12-12-1997 and executed pro note and receipt in his favour; that after four months of the execution of pro note and receipt the plaintiff demanded the borrowed money from the defendant but he declined, which constrained the plaintiff to file of a civil suit for recovery of Rs,1,50,000 on 8-12-2000. On the application of defendant leave to appear and defend the suit was granted by the learned trial Court on 30-7-2011. Consequently, defendant lodged written statement contending that he had never borrowed any amount from the plaintiff; that the alleged pro note and receipt are forged and fictitious documents. Following issues were framed by the learned trial Court as arising out of the pleadings of the parties:--- ISSUES
1. Whether defendant received Rs,1,50,000 from the plaintiff as loan and executed disputed pro note and receipt dated 12-12-1997? OPP
2. Whether the suit is instituted by unauthorized person? OPD
3. The plaintiff produced Rana Abdul Sattar Deed Writer Chishtian (PW-1), Asghar Ali Bhullar Special attorney/authorized by the plaintiff (PW-2), Muhammad Amin marginal witness of the pro note (PW-3) and Shafaqat Ali marginal witness of pro note (PW-4). Original pro note (Exh.P.1), original receipt (Exh.P.2) and original authority letter (Exh.P.3) were also brought on record by the plaintiff as documentary evidence. The defendant produced ljaz ul Hassan Choudhary, Advocate as DW-1 and himself appeared in the witness box as DW-2. Thereafter, the learned trial Court dismissed the suit vide impugned judgment and decree dated 8-5-2003 as mentioned above.
4. The main grounds of the appeal are that findings of the learned trial Court on Issues Nos.1 and 1- A are against law and facts., based on misreading and non-reading of evidence and liable to be set aside.
5. I have carefully gone through the record and also given my anxious consideration to the arguments advanced by learned counsel for the parties.
6. The main points for determination in the appeal are as under:-- 1. Whether the suit is properly instituted by the plaintiff?
2 Whether the plaintiff is entitled to recover a sum of Rs,1,50,000 from the defendant on the basis of pro note and receipt dated 12-12-1997?
POINT NO,1.
7. This point arises out of an objection raised by the defendant in his written statement that the suit is filed by unauthorized person. Whereupon, learned trial Court framed Issue No,1-A. Onus probandi of said issue was placed upon the defendant, who brought ljaz ul Hassan Choudhry, Advocate as DW-1. He deposed that he has been residing in Germany for about 6-1/2 years and can read and understand the contents of the authority letter (Exh.P.3); that contents of the authority letter do not contain the words "read over and admitted correct". However, Notary Public has verified the signatures of Manzoor Ahmed as well as his residential address. During cross-examination, he admitted that Exh. P.3 is duly verified by the German Consulate.
8. On the other hand, Asghar Ali Bhullar (PW-2) while appearing in the witness box has categorically stated that Manzoor Aimed plaintiff has authorized him to sue the defendant for recovery of the disputed amount on the basis of pro note and in this regard authority letter (Exh.P.3) was duly executed in his favour. Perusal of the authority letter transpires that it was executed on 16-11-2000 and the instant suit was filed on 7-12-2000. Contents of the authority letter (Exh.P.3) transpires that Manzoor Ahmed had given authority to Asghar Ali Bhullar to sue Qamar ul Zaman. Defendant for recovery of Rs,1,50,000 on the basis of pro note.
8. It, therefore, is sufficiently established on record that the suit was instituted by a duly authorized person, namely, Asghar Ali Bhullar on behalf of the plaintiff Manzoor Ahmed. The defendant has miserably failed to discharge the onus probandi of Issue No,1-A, which is rightly answered in negative. Point No,1 is, therefore, answered in positive.
' POINT NO,2
10. Rana. Abdul Sattar, Deed Writer (PW-1) in his testimony has uttered that on 12-12-1997 Qamar ul Zaman and Manzoor Ahmed came to him and both requested to scribe pro note and receipt for a sum of Rs,1,50,000. Whereupon, he scribed pro note (Exh.P.1) and receipt (Exh.P.2) and also obtained signatures of the witnesses; that same were also entered in his register at Serial No,390 and the signatures were also obtained in the Register. During cross-examination, he stated that receipt of amount was acknowledged before him; that Qamar ul Zaman defendant is personally known to him.
11. Muhammad Amin (PW-3) one of the marginal witnesses of the pro note (Exh.P.1) and receipt (Exh.P.2) in his statement uttered that parties are known to him; that promote and receipt, valued Rs,1,50,000 were scribed by Abdul Sattar, Deed Writer and payment of amount was admitted by the defendant in his presence; that he along with Shafaqat Ali are witnesses of the pro note and they also signed the same. During cross-examination he categorically stated that the defendant had signed the pro note in his presence. He denied the suggestion that defendant had not executed the pro note.
12. Shafaqat Ali (PW-4) while appearing in the witness box stated that parties are known to him; that pro note (Exh.P.1) and receipt (Exh.P.2) were scribed in his presence on the request of the parties; that he and Muhammad Amin had put their signatures as witnesses which were recorded Abdul Sattar Deed Writer, however, exchange of amount of Rs,1,50,000 was not made in his presence.
13. Bare perusal of the ocular and documentary evidence produced by the plaintiff transpires that execution of pro note (Exh.P.1) and receipt (Exh.P.2) has been sufficiently proved without iota of doubt. Nothing material has been elicited from the defendant's side through cross-examination upon P.Ws. The learned trial Court has observed in Paragraph No,6 of the impugned judgment that execution of the pro note (Exh.P.1) and receipt (Exh.P.2) is proved by the plaintiff as required by law.
The learned trial Court has further observed that defendant could have availed assistance of the court for comparison of signatures with those impressed on the documents which he did not opt and that this fact negates the defendant's version regarding denial of the execution of the pro note (Exh.P.1) and receipt (Exh.P.2). Despite reaching the afore-referred conclusion regarding execution of the pro note (Exh.P.1) and receipt (Exh.P.2) it is astonishing that the learned trial Court has opined that since one of the adhesive stamps valued Rs,50 paisas had not been cancelled at the time of execution of the pro note, therefore, the same is inadmissible document and no decree can be passed on the basis of said pro note (Exh.P.1) and receipt (Exh.P.2). Perhaps learned trial Court is misconceived on this legal proposition. The learned trial Court while formulating the above opinion has taken reliance upon Malik Muhammad Akram v. Khuda Bakhsh (2000 CLC 579 Lahore). The facts of the cited case are altogether different and distinguishable from the facts of the instant case. In the cited case of Malik Muhammad Akram, the promissory note valued Rs,60,000 was required affixation of stamps worth Rs,10. However, the same was bearing 20 adhesive stamps of 40- paisas each and thus promissory note was declared undervalued by Rs,2. In addition to above, four of the affixed adhesive stamps were not cancelled. In the above state of affairs it was held that promissory note in question was insufficiently stamped and out of all 20 stamps, four (4) denomination of 40 paisas each had not been cancelled at the time of execution of the pro note, thus, it was held that the pro note being a invalid document, no decree could be passed in favour of the respondent against the appellant.
14. Instant is not a case of undervalued pro note rather the sole exception taken by the learned trial Court is that only one adhesive stamp valued Rs,50 paisas has not been cancelled at the time of execution of the pro note and that the same is inadmissible document. In order to meet the above exception of the learned trial Court I take advantage to rely upon Muneer Ahmed Kahloon v. Rana Muhammad Yousaf (PLD 2003 Lahore 173). This is a Division Bench judgment. In this case of Muneer Ahmed Kahloon an objection with regard to non-cancelling the adhesive stamp was raised in the written statement but the said objection was not pressed when the pro note was admitted in the evidence. Relevant extracts from the case of Muneer Ahmed Kahloon read below:--- ' The person required by subsection (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner"---.
14.---Although an objection was taken in the written statement, yet it appears, that the objection was not pressed when Exh.P.1 was admitted in the evidence. We may also observe that payment of stamp duty is a matter between a citizen and State and an adversary could not be permitted to capitalize on a technicality which was otherwise, not fatal to the suit. We are not persuaded to interpret sections 12 and 35 of the Stamp Act in such a manner that these are allowed to operate as a tyrant master"
15. Careful perusal of the pro note (Exh.P.1) and receipt (Ex.P2) transpires that the tail of the signatures of the scribe is also touching the edge of the questioned adhesive stamp. Perhaps the scribe considered it sufficient for the purpose of cancellation to his satisfaction, therefore, benefit should go to the plaintiff. Needless, to mention that purpose of the cancellation of stamps is to avoid its reuse and not to punish the beneficiary of the pro note.
16. Despite the fact that section 35 of the Stamp 'Act is curative provision, it is noticeable that section 36 of the Stamp Act provides that once an instrument is admitted in evidence it could not be called in question at any stage of the suit or the proceedings on the ground that it was not duly stamped except under section 61 of the Stamp Act. In this regard reliance is made upon Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique (PLD 1978 SC 279), which lays down that the object of section 35 of the Act is not to invalidate the instrument but to protect the public revenue.
17. In the instant case, defendant Qamar ul Zaman has miserably failed to take any such objection in his written statement or at the time when pro note (Exh.P.1) and receipt (Exh.P.2) were admitted in evidence, therefore, plaintiff' cannot be non-suited on this technical ground especially when the execution of pro note (Exh.P.1) and receipt (Exh.P.2) has been duly proved on the record through testimony of the scribe and the marginal witnesses in the absence of any material rebuttal.
Therefore, findings of the learned trial Court on Issue No,1 are erroneous, against law and facts and not sustainable and thus are reversed. Accordingly Issue No,1 and instant point No,2 are, thus, answered in positive.
18. As sequel to the above, appeal is accepted and impugned judgment and decree dated 8-5- 2003 is set aside and the plaintiff's suit for recovery of Rs,1,50,000 on the basis of pro note and receipt dated 12-12-1997 is hereby decreed in favour of the plaintiff against the defendant with costs.