' IJAZ AHMED CHAUDHRY, J.---This appeal has been directed against the judgment dated 26-3- 2009 passed by the learned Lahore High Court, Rawalpindi Bench whereby Regular First Appeal No, 201 of 2001 filed by the respondent was allowed and the judgment and decree dated 21-11-2001 passed by the learned District Judge, Chakwal, was reversed vide which the suit filed by the appellants under Order XXXVII, C.P.C. For recovery of Rs,9,04,157 was decreed.
2. Briefly stated the facts of the matter are that the appellants filed a suit under Order XXXVII, C.P.C.
Against the respondent wherein it was alleged that the appellants along with others formed an organization for collection of contributory committees. Each member has to pay its contribution daily. Respondent was selected as convener of the committee. The respondent used to collect the amount and after due collection he used to pay the amount of committee to the concerned individual. It was also alleged in the plaint that the respondent collected Rs,4,75,580, Rs, 2,69,987 and Rs,1,59,590 from the appellants Qazi Abdul Ali, Syed Hashim Raza and Muhammad Jehangir respectively.
' When the appellants demanded return of the amount, the respondent executed an agreement as well as a pronote and receipt thereof. Subsequently, he refused to return the same, which persuaded the appellants to file the suit before the learned Civil Court. The learned trial Court vide its judgment dated 21-11-2001 decreed the suit. However, in appeal filed by the respondent, the learned High Court has reversed the judgment and decree of the trial Court only on the ground that as the stamps on the pronote were not duly cancelled, therefore, the same could not have been qualified to be a pronote. Hence this appeal.
3. Learned counsel for the appellants has contended that the pronote has been fully proved through the statements of P.Ws.2, 3 and 4; that the pronote is proved under Articles 17 and 79 of the Qanun-eShahadat Order, 1984; that the adhesive stamps were affixed in the sum of Rs,10 and non- cancellation of the same does not invalidate the pronote as it was admitted in evidence; that even otherwise the purpose of affixing of adhesive stamps is to collect revenue; that in view of the settled law when there is overwhelming evidence available on record, the handwriting expert's report has no value and that the learned High Court has committed an error by ignoring this aspect of the matter and the judgment of the High Court is liable to be set aside. Learned counsel in support of the contention has relied on Manzoor Ahmed Khan v. Mst. Minhajunn Nisa (1975 SCMR 167), Lal Muhammad v. Muhammad Usman and others (NLR 1979 Civil 409), Rehmat Ali v. Wahid Bux (NLR 1979 Civil 809), Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique (PLD 1978 SC 279) and Sirbaland v. Allah Loke and others (1996 SCMR 575).
4. On the other hand, learned counsel for the respondent has submitted that the execution of the pronote has been denied by the respondent; that the report of the handwriting expert is also to the effect that the signatures on the pronote did not match with that of the respondent; that the adhesive stamps on the pronote had not been cancelled in accordance with the requirement of section 12 of the Stamps Act and thus the document was insufficiently stamped and cannot be considered as pronote, that the appellants could not have filed the suit under Order XXXVII, C.P.C. In support of the contentions he has relied on Ch. Khalid Mahmood v. Ch. Said Muhammad (PLD 2005 Lahore 732), Malik Muhammad Akram v. Khuda Bakhsh (2000 CLC 759), Mirza Arif Bain v. Mubarik Ali (PLD 1992 Lahore 366), K.M. Muneer v. Mirza Rashid Ahmad (PLD 1963 Karachi 905), Jatindra Mohan Deb Laskar v. Khara Singh and others (AIR 1964 Assam 138), Syed Nazir Hussain Rizvi v. Zahoor Ahmed (PLD 2005 SC 787), Sh. Abdul Majid v. Akhtar Hussain Zaidi (PLD 1988 SC 124), Hameed Ahmed v. Gulab Khan (2006 SCMR 895) and Sh. Muhammad Shakeel v. Sh. Hafiz Muhammad Aslam (2014 SCMR 1562).
5.. We have heard learned counsel for the parties and have gone through the judgments as also the available record.
6. To prove the pronote P.W.1 Abdul Ali, appellant, P.W.3 Zahid Maqbool and P.W.4 Azadar Shah were produced before the trial Court. P.W.1 i,e, the appellant Abdul Ali explained the whole story. P.W.3 and P.W.4 also supported the case of the appellants and stated that the pronote Exh.P2, receipt Exh.P3 and agreement Exh.P1 were signed in their presence. They were subjected to lengthy cross- examination but they remained consistent on the point that such an agreement/pronote A was executed by the respondent/defendant. So far as the plea of the respondent that he never executed such a pronote and the positive report of handwriting expert to this effect is concerned, we find that in the presence of such a strong and direct evidence, only the report of the handwriting expert cannot be made basis to discard the case of the appellants. Other attending circumstances of the case have also to be taken into consideration. If direct evidence to prove a fact is available then much importance has to be given to it. This court in a number of B judgments has held that in the presence of direct evidence, expert c evidence carries no legal value. The learned trial Court keeping in view all the attending circumstances had come to a definite conclusion and had decreed the suit. However, the learned High Court took a different stand and has held that as the adhesive stamps on the pronote were not properly cancelled thus in terms of section 12 of the Stamp Act, 1899, the document was insufficiently stamped and the appellants could not have filed suit under Order XXXVII, C.P.C. Before the trial Court. While passing the impugned judgment, the learned High Court did not take into consideration the fact that Stamp Act is a revenue collecting law and the object of cancelling of stamps is only that the same might not be used again on any other document. The provisions of law are not intended to deny vested rights of the parties and to punish the beneficiary D of pronote. According to section 12(3) of the Stamp Act "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." We have gone through the pronote and found that out of 20 adhesive stamps only two have not been crossed/cancelled. Section 12(2) of the said Act provides that "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." From the bare perusal of this provision it is clear that the instrument Could be deemed to be unstamped only to the extent of stamps which had not been cancelled. As only two stamps were not cancelled, the pronote in question was insufficiently stamped only to the extent of those stamps. In such a case, the same could be admitted in evidence on payment of penalty provided under law but it could not be held that pronote in question which was insufficiently stamped could have formed the basis of rejection of claim of the appellants/plaintiff. 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. According to section 36 of the Stamp Act, 1899, document once admitted in evidence could not be challenged at any stage of proceedings on the ground for not being duly stamped except under section 61 thereof. In Ch. Muhammad Saleem v. Muhammad Akram and others (PLD 191 SC 516) the question as to whether an agreement which was not stamped can be admitted in evidence or not came up for consideration and this Court while relying on an Indian case-law, with approval, has held that "once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a Court of Appeal or Revision to go behind that order." Similarly in Union Insurance Company of Pakistan (Pvt.) Ltd. v. Muhammad Siddique (PLD 1978 SC 279) wherein the issue was relatable to an unstamped arbitration agreement, this Court has specifically held as under:-- "Section 35, Stamp Act, 1899 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 have to be construed strictly, because they are to be found in a provision of a penal nature. Therefore, it would be against all canons 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, and 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, there is nothing in the section which would support the 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 provisos 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, 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 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." (Emphasis is supplied)
7. In Farid Akhtar Hadi v. Muhammad Latif Ghazi (1993 CLC 2015) one of the issues was with regard to admissibility of a document on which some of the stamps were not cancelled and the learned Court after discussing a number of case-law had come to the conclusion that "an instrument once having been admitted in evidence is immune from challenge on the ground that it was under- stamped or the stamps were not cancelled properly." In Munir Ahmed Kahloon v. Rana Muhammad Yousaf (PLD 2003 Lahore 173) the pronote in question bore 25 adhesive stamps on it and out of those 25 two were not crossed/cancelled. The learned High Court has held that the instrument would be deemed to be unstamped only to the extent of stamps which had not been cancelled; that provisions of section 12 of the Stamp Act have been substantially complied with; pronote could be admitted in evidence on payment of penalty and that once the instrument was admitted in evidence, same could not be called in question at any stage of suit or proceedings on the ground that it was not duly stamped except under Section 61 of Stamp Act, 1899." In Muhammad Hanif v.
Kissan Dost (Pvt.) Ltd. (2003 CLD 224) the plea raised by the defendant was that the stamps affixed on the pronote were not cancelled, therefore, the same is inadmissible document in evidence but the Court came to the conclusion that "as the pronote was admitted in evidence without objection by the defendant at the relevant time the same could not be kept out of consideration at the time of deciding of appeal." Similarly in Manzoor Ahmed v. Qamar ul Zaman (2011 CLC 1756) the suit for recovery of money on the basis of pronote was dismissed by the learned trial Court on the ground that pronote was inadmissible in evidence due to non-cancellation of one of adhesive stamps but the learned High Court accepted the appeal filed by the plaintiff and has held that "according to section 36 of the Stamp Act, 1899, document once admitted in evidence could not be challenged at any stage of proceedings on ground for not being duly stamped except under section 61 thereof. Defendant in written statement had not raised objection regarding non-cancellation of questioned stamp. Plaintiff could not be non-suited on technical ground."
8. In this case as well, the respondent in his written statement had not raised any objection regarding non-cancellation of the questioned stamps and in such circumstances the appellants could not be non-suited on technical ground. Thus, the suit filed by the appellants before the trial Court was competent..
9. For what has been discussed above, we are of the view that the learned High Court ought to have decided the matter on merits, since in our opinion the objections taken with regard to the pronote were not sustainable. Consequently, this appeal is allowed and the impugned judgment of the learned High Court is set aside. Regular First Appeal No,201 of 2001 shall be deemed to be pending before the learned High Court, which we are sanguine, may be decided preferably within a period of 4 months from the receipt of this judgment.