' SYED MUHAMMAD KAZIM RAZA SHAMSI, civil revision -petition filed under section 115, C.P.C. Is directed against an order dated 14-1-2012 passed by the learned Additional District Judge, Sahiwal whereby the application filed by"the petitioner under Order VII, rule 11, C.P.C. Seeking rejection of the plaint was dismissed.
2. The respondent/plaintiff had prayed for a decree of Rs,15,00,000 against the defendant/petitioner on the basis of a pro-note allegedly executed, by the petitioner/defendant on 24-1-2009.
3. A contesting written statement was filed by the defendant denying from the execution of the pro note. Subsequently, through a separate application, the defendant prayed for the rejection of plaint on the ground that the alleged pro note was deficiently stamped which defect is not cureable under section 35 of the Stamp Act, 1899 as such, the suit is liable to be dismissed. The application was contested by the plaintiff and the learned trial court after hearing both the parties, dismissed the application relying upon the case reported as 1996 SCM R 575 and directed the plaintiff of the suit to make up the deficiency in the payment of stamp duty along with the penalty of 5%.
4. Learned counsel for the petitioner while relying upon the provision of section 35 of Act (ibid), argued that by virtue of clause (a) of the proviso of the section, a bill of exchange or promissory note, have been excluded from admitting in evidence on the payment of the duty with which the same document is chargeable, therefore, the view taken by the learned trial court in ordering to make up the deficiency in the payment of stamp duty is against the spirit of law. He also distinguished the judgment relied upon by the learned trial court in this connection by asserting that the case so referred by the learned trial court deals with the matter of an agreement to sell which is quite distinguishable with the facts of instant case. He in support of his arguments has relied upon the case of Chaudhry Khalid Mehmood v. Chaudhry Said Muhammad (2005 CLD 1864).
He prayed for the acceptance of his application and rejection of the plaint on this score.
5. Learned counsel for the respondent by seeking the help of the cases reported as Masood Anwar v. Sabir Khan (PLD 2006 Peshawar 208) and Munir Ahmad Kahloon v. Rana Muhammad Yousaf (PLD 2003 Lahore 1731 submitted that the payment of stamp duty is a matter between a citizen and the State and an adversary could not be permitted to capitalize on a technicality which otherwise was not fatal to the suit It is forcefully argued that the illegality if any, committed by the respondent in relying upon an under stamp pro-note is not fatal defect rather it can be cured by the orders of the court.
6. I have considered the cases referred by the learned counsel for the parties vis-a-vis the provisions of section 35 of Stamp Act, 1899.
7. Certainly the case of Sir Buland (1996 SCM R 575) deals with the payment of stamp duty in respect of an agreement to sell which according to the provision of section 35 of the Act (ibid) can be cured in the manner provided in the law but the case in hand is distinguishable on this score that a pro-note is being dealt with here. Similarly, the cases of Munir Ahmad Kahloon and Masood Anwar do not rescue the petitioner as in those cases proviso sub-clause (a) of the proviso to section 35 has not been dilated upon nor the cases have been decided with this angle.
8. Reverting to proposition involved in the case in hand, plain reading of section 35 provides that no instrument chargeable with duty shall be admitted in evidence, unless such instrument is stamped.
This wording used in the section itself clarifies that only those documents could be admitted in evidence which are stamped in the manner provided in the law. To this general rule exceptions have been narrated in sub-clause (a) to sub-clause (e) in the proviso narrated with section. Sub- clause (a) is relevant for the purpose of the instant case which is read as under:-- "any such instrument not being an instrument chargeable with a duty (not exceeding twenty five paisa) only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on paym ent of the duty with which the same is chargeable (Emphasis hasbeen provided).
9. The plain study of the above-said provision reveals that the documents, the value of which does not exceed twenty five paisa or a bill of exchange or promissory note have been excluded from the application of the main paragraph, meaning thereby that if a document is valued less than 25 paisa shall not be chargeable with duty and a bill of exchange and promissory note are required to be duty stamped and shall not be admitted in evidence, if they are not duly stamped.
10. The legislature in view of above interpretation of B section, appears to have intentionally kept out of making up a deficiency in the payment of the stamp duty in respect of bill of exchange or promissory note for the reasons which cannot be dilated upon by the courts on the principle that the wisdom of the legislature cannot be challenged in any manner. This exclusion of these two types of documents from tendering the same in evidence if the same are deficiently stamped has been considered by the Division Bench of this court In the case of Chaudhry Khalid Mahmood (supra) wherein it is observed candidly in the following words:-- ' This means that the defect of deficiency of stamps on a pro note is incurable and it remains to be inadmissible in evidence. This is the ultimate C purport of section 35 of the Stamp Act, 1899 when construed along with the first proviso."
11. In view of this interpretation of section, it appears that the learned trial court did not examine the relevant provision of law properly while dismissing the application of the petitioner as such, the order is liable to be recalled.
12. For the foregoing reasons, this revision petition is allowed by setting aside the impugned order as a result of which the application filed by the petitioner is allowed with costs as prayed for.