ASAD MUNIR, J. --- Facts as they appear from the record are that late Haji Muhammad Ismail, the predecessor in-interest of respondents and the appellant entered into an agreement dated 27.8.1999, whereby the former sold to the latter a crop of oranges for the price of Rs. 150,000/-, out of which Rs.
75,000/- was paid by the appellant as earnest money while the balance price of Rs. 75000/- was to be paid in three instalments, the last of which was payable by 1.12.2000. A few days later, the appellant paid Rs. 7,000/- to Haji Muhammad Ismail and also executed, in his favour a promissory note dated 30.8.1999 for Rs. 68,000/- in order to secure the instalments due pursuant to the agreement dated 27.8.1999.
2. On the failure of the appellant to pay the amount due, Haji Muhammad Ismail on 19.9.2001 filed a suit under Order 37, Rule 2, C.P.C. For recovery of Rs. 68,000/-on the basis of the promissory note dated 30.8.1999. Vide order dated 17.11.2001, leave to defend the suit was granted to the appellant whereafter written statement was filed by the appellant. After framing the issues and recording the evidence, the learned Additional District Judge, Toba Tek Singh, vide judgment and decree dated 22.10.2003 decreed the suit as prayed for.
3. Through this Regular First Appeal, the judgment land decree dated 22.10.2003 has been challenged primarily on the ground that the promissory note on which it is based was inadmissible in evidence for being insufficiently stamped. It is also contended that no claim could be based on the promissory note as not only was it without consideration but was also not duly proved as it was not produced by the respondents in their evidence.
4. While admitting that the promissory note and receipt were insufficiently stamped to the extent of Rs. 15/-, learned counsel for the respondents has contended that since the promissory note was admitted in evidence, the deficiency in stamp can be made good in accordance with the provisions of Section 35 of the Stamp Act, 1899 as laid down in the case titled Union Insurance Company Pakistan Ltd. v. Hafiz Muhammad Siddique (PLJ 1978 SC 336).
5. I have considered the contentions of the learned counsel for the parties in the light of the case- law submitted by them and have also perused the relevant record.
6. The main argument of the learned counsel for the appellant is that the promissory note on which is suit was based, being insufficiency stamped, was inadmissible in evidence under Section 35 of the Stamp Act, 1899. In support, the learned counsel has referred to case-law but the said case-law is to be degraded in view of the pronouncements in Union Insurance Company Ltd., Pakistan v.
Hafiz Muhammad Siddique (PLJ 1978 S.C. 336), wherein the Honourable Supreme Court has laid down as under:- "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 enables the parties to overcome the disabilities attached to an instrument not properly stamped by paying the requisite duty together with a penalty, therefore, 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, howsoever erroneously, its admissibility cannot be questioned at any stage thereafter, and even the Appellante 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 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 instrument vital to the smooth flow of trade and commerce."
7. In the present case, the promissory note and the receipt were admitted in evidence by the Trial Court as Exh.P-1 and Exh.P-2, respectively. No objection at this stage can be taken to the admissibility of these documents on the ground of insufficiency of stamp in view of Section 36 of the Stamp Act, 1899, which 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".
Admittedly, the documents in question are insufficiently stamped to the extent of Rs. 15/- and such deficiency can be made good by passing the appropriate order under Section 61 of the Stamp Act, 1899.
8. The argument that the promissory note was not duly proved is also without force. Record shows that the appellant was confronted with the promissory note including the receipt (Ex.P-1 and .Ex.P- 2) during cross-examination but he denied its execution whereupon it was referred to the handwriting expert (PW5) of the Finger Print Bureau, Lahore, who vide Report dated 29.3.2003 (Ex- PW-5/1) gave the opinion that the promissory note as well as the receipt did bear the thumb- impressions of the appellant. Based on the opinion in the said Report, the promissory note and the receipt in question were duly proved to have been executed by the appellant.
9. The validity of the promissory note has also been impugned by pleading that it is not enforceable for being without consideration as no payment had been received by the appellant at the time of execution of the promissory note. Admittedly, the promissory note was executed to secure the payment of monetary obligations which were not due when the promissory note was executed but were to become due subsequently. It has been found that the appellant was liable to pay the three instalments by 1.12.1999 on account of the sale of the orange crop. As such, the appellant for value received was a purchaser of goods who had become a debtor and who could be proceeded against for recovery of the amount due stated in the promissory note. In support, I may refer to Muhammad Rafique v. Muhammad Nawaz (2001 CLC 318) which lays down that "In law it is not necessary that payment should be contemporaneous with the execution of the pronote. In fact, a pronote can be executed to secure the payment of monetary obligations even .
Where there is no debt or payment involved."
10. Based on the foregoing discussion, I find no merit in the appeal which is dismissed leaving the parties to bear their on costs. However, the respondent is found to be liable to pay Rs. 15/- on account of the deficiency in stamp on the promissory note and the receipt alongwith ten times penalty of Rs. 150/-. Such amount shall be paid into the account of District Collector, Toba Tek Singh or his successor-in-office to whom copy of this order alongwith the promissory note and the receipt shall be transmitted by the office.