Shahid Waheed, J.--Challenge in this appeal is to the judgment and decree dated 3.3.2010 passed by the learned Addl. District Judge, Jhang whereby the suit filed by the respondent for recovery of Rs, 1,000,000/- on the basis of pronote dated 5.11.2005 was decreed.
2. Briefly the facts of the case are that the respondent, Ghulam Rasool, on the basis of pronote dated 5.11.2005 (Ex.P1) instituted a suit under Order XXXVII, Rule 2, CPC against the appellant for recovery of Rs, 1,000,000/-. It is stated in the plaint that the respondent and the appellant had friendly relations with each other; and, that the appellant on 5.11.2005 borrowed Rs, 1,000,000/- from the respondent and for the security of its repayment executed pronote (Ex.P1) and receipt (Ex.P2) in the house of the respondent. In response to summons the appellant entered appearance before the learned trial Court and filed an application for leave to appear and defend the suit. The learned trial Court vide order dated 15.12.2007 granted leave to the appellant subject to his furnishing surety bond equivalent to the suit amount. After getting leave the appellant contested the suit by filing a written statement wherein though he admitted his thumb impression on the pronote (Ex.P1) and receipt (Ex. P2) but denied his liability to pay the' amount on the plea that the pronote and receipt were obtained by the respondent fraudulently on the blank papers.
3. On pleadings of the parties the learned trial Court framed the following issues:--
1. Whether the plaintiff is entitled for recovery of Rs, 10 lac on the basis of pro-note and receipt dated? OPP
2. Whether the plaintiff has no cause of action and locus standi to file this suit? OPP
3. Whether the promissory note dated 05.11.2005 is bogus forged and based on fraud? OPD
4. Whether the suit is time barred? OPD
5. Whether the plaintiff is estopped by his own words and conduct to file the suit? OPD
6. Whether the suit is based on fraud, malafide and has also been filed just to harass the defendant? OPD
7. Whether the suit is not maintainable in its present form? OPD
8. Relief.
4. The respondent appeared before the learned trial Court as PW-3 and produced Ghulam Shabbir (PW-1) and Hakam Ali (PW-2). In documentary evidence the respondent tendered promissory note (Ex.P1) and receipt (Ex.P2). Conversely, the appellant himself appeared as DWI. and produced Muhammad Jahangir as DW-2. The appellant, however, did not tender any documentary evidence in support of his claim. After recording evidence the learned trial Court decreed the suit with costs vide judgment and decree dated 3.3.2010. Hence, this appeal.
5. In support of instant appeal, the learned counsel for the appellant has contended that no decree on the basis of pronote (Ex.P1) could have been passed by the learned trial Court as the same was not properly stamped; that the stamps affixed on the pronote (Ex.P1) have not been properly crossed; that the revenue stamps affixed on the back of promissory note (Ex.P1) carry no value in the eye of law; and, that pronote being a document creating future obligation was required to be attested by two witnesses in terms of Article 17 of the Qanun-e-Shahadat Order, 1984 and since the pronote (Ex.P1) is not in conformity with Article 17 of the Qanun-e-Shahadat Order, 1984, no decree could be passed on its basis. In support of his contention learned counsel for the appellant placed reliance on the case of K.M. Muneer Vs. Mirza Rashid Ahmad (PLD 1964 (W.P.) Karachi 172), Habib Bank Ltd. Vs. Mst. Nusrat Naheed, etc. (NLR 1989 UC 391), Malik Muhammad Akram Vs. Khuda Bakhsh (2000 CLC 759) and Muhammad Nawaz Vs. Abdul Sattar (PLJ 2000 Lahore 1619). On the other hand, the learned counsel for the respondent has vehemently opposed this appeal and supported the judgment and decree passed by the learned trial Court. He submitted that the respondent/plaintiff by producing the witnesses proved the execution of pronote (Ex.P1) and thus the onus was shifted on the appellant to establish that he had thumb marked on the blank papers but he failed to discharge his burden and, therefore, the judgment and decree passed by the learned trial Court is valid in all respects.
6. We have heard the learned counsel for the parties and perused the record.
The first question requiring determination is as to whether a pronote is a document which requires attestation of two witnesses within the contemplation of Article 17 of the Qanun-e-Shahadat Order, 1984. We are not persuaded to agree with the argument of the learned counsel for the appellant that pronote is a document which requires attestation by two witnesses within the meaning of Article 17 of the Qanun-e-Shahadat Order, 1984 for the simple reason that a transaction through a pronote is governed by a special law, that is, the Negotiable Instrument Act, 1881 and Section 4 thereof does not require any witness to testify the promissory note. Thus, compliance of the provisions of Article 17 of the Qanun-e-Shahadat Order, 1984 by virtue of its clause (2), which clearly ordains, "unless otherwise provided in any special law is not mandatory in respect of pronote. The above view finds corroboration from the judgment rendered in the case of. Mst.
Sughran Begum and 11 others Vs. Haji Meer Qadir Bakhsh and two others (PLD 1986 Quetta 232), Amir Tufail Vs. Muhammad Sadiq (2006 CLD 91), Abdul Rauf Vs. Farooq Ahmad and another (PLD 2007 Lah. 114) and Multan Beverages Co. Vs. Abdul Rehman (2007 YLR 1038). The reliance of the learned counsel for the .appellant on the judgment rendered in the case of Muhammad Nawaz Vs. Abdul Sattar (PLJ 2000 Lah. 1619) is not apt as the said judgment is based on the judgment rendered by the Division Bench of this Court in the case of Abdul Khaliq Vs. Muhammad Asghar Khan and two others (PLD 1996 Lah. 367) wherein the question involved was about validity of agreement to sell which did not bear signatures of attesting witnesses. The' question whether attestation of two witnesses was legal requirement of pronote under Negotiable Instrument Act was neither raised nor considered by the learned Single Judge in his judgment. We therefore, find no force in the contention of the learned counsel for the appellant for excluding the pronote (Ex.P1) from consideration for want of attesting witnesses in terms of Article 17 of the Qanun-e-Shahadat Order, 1984.
8. The next contention of the appellant's counsel is that the revenue stamps affixed on the back of the promissory note (Ex.P1) do not carry any value in the eye of law and as such the suit filed by the respondent could not be decreed. This contention is neither correct nor gets support from the judgment cited by him, that is, Habib Bank Ltd, Vs. Mst. Nusrat Naheed etc. (NLR 1989 UC 391). It is settled principle of law that when the pronote and the receipt of pronote are on the same leaf, the mere fact that some of the stamps are on the portion which falls on the back of the printed receipt or pronote, would not lead the Court to treat those stamps as on a paper other than that of a pronote. We have perused the original pronote and the receipt and found that it is sufficiently stamped. It was also contended that the stamps were not properly cancelled and, therefore, it is to be treated as if the pronote was not duly stamped. In this connection it would be helpful to reproduce Section 12 of the Stamp Act, 1899 which reads as under:-- "Cancellation of adhesive stamps.--(1) (a) Whoever affixed any adhesive stamp to any instrument chargeable with duty which has been executed by any person shall, when, affixing such stamp, cancel the same so that it Cannot be used again, and
(b) Whoever executes any instrument on any paper bearing an adhesive stamp shall, at the time of execution, unless such stamp has been already cancelled in manner aforesaid cancel the same so that it cannot be used against.
5. (2) Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, so far as such stamp is concerned, be deemed to be unstamped.
(3) The person required by sub-section (1) to cancel an adhesive stamp may cancel in 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."
The plain reading of sub-section (3) of the Section 12 of the Stamp Act shows that the adhesive stamps are to be cancelled by writing on or across the stamp with name or initials and the date by the executant or in any other effectual manner. The perusal of Section 12(3) of the Stamp Act makes it clear that writing his name or putting his initials by the executant is not the only mode of cancellation of the stamp. Adhesive stamps can also be canceled in other ways. The object of cancellation of adhesive stamps is to prevent the same stamps from being used again. The cancellation is required for the purpose of preventing fraud, thus if adhesive stamp is affixed on a document and it is cancelled by drawing a line across it, it cannot be used again unless it is removed from the document, which may not be possible without in some measure causing some visible damage to the stamp itself. Such a cancellation is effective because this section does not contemplate that a person require to cancel such a stamp must do so in such a manner that it may become impossible for a criminal minded person to use such stamp again in any circumstance whatsoever. In this regard reference may be made to the judgment rendered in the case of Habib Bank Ltd. Vs. Raza Sons & Co.. (PLD 1978 Kar. 425), Motiram Nathomal V. Mangharam Tirathadas (ILR 1942 Kar. 56), Mst. Sajda Abbas Zaidi vs. Syed Arshad Ali Jafari (1990 CLC 1018). In the present case the adhesive stamps which have been affixed on the pronote and its receipt have been cancelled by drawing two lines across the face of each stamp. In our view all the stamps appear to have been effectually cancelled by the respondent in accordance with Section 12 of the Stamp Act and thus the contention raised by the learned counsel for the appellant has no force and the judgment cited by him are not applicable to the facts of instant case.
9. As far as the proof of pronote (Ex.P1) and the Receipt (ExP2) are concerned, it is suffice to say that the respondent has proved the same by producing its marginal witnesses i,e, Ghulam Bashir (PW- 1) and Hakam Ali (PW-2) who have admitted their signatures on the receipt (Ex.P2) and also the execution of pronote (Ex.P1). In these circumstances, the burden was on the appellant to establish that he had thumb marked on the blank papers and had not obtained any amount from the respondent. It is worth mentioning here that neither the statements of PW-1 and PW-2 have been shattered in the cross-examination nor any motive has been imputed to them that they were making a false statement. In the light of these circumstances, we are of the view that the plaintiff/respondent has proved his case and the learned trial Court has rightly decreed the suit:
10. This appeal lacks merit and is accordingly dismissed with no order as to costs.