' CH. MUHAMMAD MASOOD JAHANGIR, J.--Succinctly the facts of the case are that the property fully mentioned in para-1 of the plaint belonged to Mst. Allah Jawai daughter of Nizam Din, regarding which a suit for declaration was instituted by Mst. Bashir Begum, respondent No,1 contending therein that she was owner in possession of the land as the same was orally gifted to her by said Mst. Allah Jawai due to love and affection on account of services rendered by her and Mst. Allah Jawai be permanently restrained from interfering into her possession with a further direction for implementation of gift mutation qua the suit property in her favour. The said suit was filed before the Civil Court on 7.4.1970 and the same was decreed within two days i.e, on 09.4.1970 as the claim of Mst. Bashir Begum, respondent No,1, was allegedly conceded by Mst. Allah Jawai while submitting her conceding written statement besides making conceding statement before the Court.
2. After the demise of Mst. Allah Jawai, inheritance mutation No,162 of her estate was sanctioned in favour of the appellants being her 'collaterals/legal heirs. On the other hand, the Revenue Officer refected the gift mutation No,166, which was entered by the Revenue Patwari in favour of respondent No,1 on the basis of consent decree. Ultimately, mutation of inheritance No,162 sanctioned in favour of the appellants was cancelled and gift mutation No,166 was attested in favour of respondent No,1 by the appellate revenue forum. Subsequently, Sardara, etc, the present appellants instituted suit in hand for declaration alleging therein that they being the collaterals/legal heirs of Mst. Allah Jawai were in possession of the land in dispute whereas respondent No,1 had no concern with the same and by way of consequential relief prayed for restraining respondent No,1 permanently from interfering into their possession over it and that the gift mutation sanctioned through the fictitious decree of the court was illegal, void and ineffective for the reasons that neither any declaration of gift was made by Mst. Allah Jawai in favour of respondent No,1 nor it was accepted by her and possession of the property was also not delivered to respondent No,1 in lieu of alleged gift; that respondent No,1, the alleged donee, was not related to Mst. Allah Jawai and there was no occasion for the alleged donor to make a gift of land in her favour and that neither any statement was got recorded by Mst. Allah Jawai nor she was identified by any notable person before the Civil Court, which passed the fictitious consent decree. The said suit was hotly resisted by respondent No,1. While .Facing with the contest of the suit, the learned trial court captured the disputed area of facts by framing the following issues:-
1. Whether Allah Jawai was owner of the land in dispute? OPP
2. Whether the plaintiffs are collateral heirs of Mst. Allah Jawai? OPP
3. If issue No,2 is proved in affirmative, whether the plaintiffs are owners in possession of the disputed land? OPP
4. Whether Mst. Allah Jawai validly gifted her property in dispute in favour of the defendant? OPD
5. Whether the gift made by Mst. Allah Jawai is void, inoperative and not binding upon the plaintiffs due to the reasons stated in para No,4 of the plaint? OPD
6. Whether the suit is not maintainable in its present form? OPD
7. Relief
3. After recording evidence of both the parties, the learned trial court dismissed the suit of the appellants vide judgment and decree dated 28.11.1977. Being aggrieved, the present appellants filed an appeal before the learned lower appellate court, which came up for hearing before the learned Addl. District Judge, Gujrat, who allowed the same vide judgment and decree dated 20.4.1982, set aside the judgment and decree passed by the learned trial court and decreed the suit filed by the present appellants. Feeling dissatisfied, respondent No,1 filed RSA No,225/1982 before this Court, which was disposed of by Justice Muhammad Sair Ali, as he then was, vide judgment dated 18.4.2006 in the following terms:- "Examination of the impugned judgment and decree dated 20.4.1982 of the learned Additional District Judge, Gujrat shows that the ADJ failed to deal with and determine issue No,6 framed on the maintainability of the suit and also decided the remaining issues (per consensus of the learned counsel for the parties) contrary to the law. In view of the joint request of the learned counsel for the parties and for the above recorded reasons, the impugned judgment and decree dated 20.4.1982 of the learned Additional District Judge, Gujrat is set aside. Civil Appeal No, 746 of 1988 titled "Sardara and another v. Mst. Bashir Begum" shall be deemed to be pending before the learned first appellate court. The appeal shall be reheard and re-decided in accordance with law and on the basis of record reconstructed in this Court. The record herein constructed shall expeditiously be transmitted to the learned District Judge, Gujrat. The parties shall appear before the learned District Judge, Gujrat on 15.5.2006. The learned District Judge, Gujrat may hear and decide the appeal himself or may assign the same to any other learned Addl. District Judge.
Endeavour shall be made to decide the appeal expeditiously. "
4. In post remand proceedings, the learned lower appellate court vide judgment and decree dated 7.7.2008 dismissed the appeal filed by the present appellants. Seeming aggrieved, the instant second appeal under Section 100 of the Code of Civil Procedure,1908 has been filed by the appellants before this Court.
5. Learned counsel for the appellants has argued that the impugned judgments and decrees passed by both the learned courts below are against facts and law and suffer from material illegalities and irregularities; that there is no evidence on record that when alleged offer of gift was made by Mst. Allah Jawai, before whom it was accepted by Mst. Bashir Begum, respondent No,1 and delivery of possession under the alleged gift was made to her and as such necessary ingredients could not be proved by respondent No,1/beneficiary, but both the courts below without application of judicious mind passed the impugned judgments and decrees in complete derogation of material available on record; that custodian is always considered its lawful owner and it cannot be proved as to which specific currency note was in possession of a particular person whereas in the case of Stamp Papers entitlement of a person can be certified firstly from the National Exchequer where price of the Stamp Papers has been deposited, secondly from the register of Stamp Vendor and thirdly from the authorities before whom the same was presented.
Insofar as the case in hand is concerned, all the authorities have admitted that the Misplaced Stamp Papers were issued to the petitioner after payment of consideration and those were never utilized for any other purpose. In this view of the matter, the objection posed by the learned Law Officer is hereby spurned.
13. Now taking up plea of learned Additional Advocate General that in case refund is allowed in absence of original Stamp Papers not only scrupulous persons would be able to use them for any other purpose but they would also succeed to get refund while causing colossal loss to the National Exchequer. In this regard, I am of the view that strict criteria can be laid to avoid such apprehension but in no way same can be made a ground to deprive a person from refund of the amount whose claim has been admitted by the relevant forums. In case the respondents have the apprehension that the Misplaced Stamp Papers were or would be used for any other purpose they can proceed against the culprit under the relevant law in addition to getting registered a criminal case against the petitioner.
14. Admittedly, the Misplaced Stamp Papers were used for preparation of Sale deed as is evident from the recitals of copy of sale deed (Annexure-C of this petition), thus, the possibility of using the Misplaced Stamp Papers for any other purpose is totally ruled out. Moreover, execution of sale deed by the petitioner on subsequently purchased Stamp Papers also eliminates said apprehension as the land once sold cannot be re-sold on the strength of Stamp Papers got issued in that regard.
15. This Court in the case of Zila Council, Sargodha (Supra) while dealing with the question regarding burdening a person to pay any fee in the National Exchequer twice has inter alia observed as under:- "4. If the appellant had deposited the requisite amount for purchasing the court fee in the Government Treasury and court fee stamp was in fact delivered to him, which is proved to have been lost he could not be burdened with further liability to purchase fresh court fee stamp unless it was established by the respondents that the said court fee stamp had been utilized for any other purpose or case.
5 If the appellant proves deposit of requisite amount of court fee in the Government Treasury and that the same was not subsequently withdrawn, but the court fee stamp was issued and lost, the plaint shall be deemed to be duly stamped unless the respondents prove that it was utilized for some other case. If the appellant fails to prove the aforementioned facts, only then it shall be called upon to make up the deficiency in the court fee within the time to be fixed by the Corm.
There will be no order as to costs. "
' If we consider the instant case on the touchstone of afore- quoted case law the answer in definite is that the petitioner is entitled for refund of the Misplaced Stamp Papers.
16. The learned Additional Advocate General has mainly opposed prayer of the petitioner on the premise that there is no provision either in the Act, 1899 or in the Rules, 1954, regarding a private person, in case of loss of original Stamp Papers. In this regard, I am of the view that in view of principle ubi jus ibi remedium (where there is a right there is a remedy) nobody can be left remediless. The said principle has also been elucidated by the apex Court of the country in the case of Sarfraz Saleem v. Federation of Pakistan and others (2014 PLC (C.S.) 884) in the following words: - "In these circumstances, lack of exercise of jurisdiction by the High Court in the present case seems to be contrary to the well accepted principle "ubi jus ibi remedium" (where there is a right there is a remedy) and the spirit of Articles 4 and 10-A of the Constitution, meant to safeguard the rights of every individual/person to be dealt with in accordance with law"
The afore-quoted portion of the judgment of apex Court of the country renders it more than clear that nobody can be left remediless. Moreover, while dealing with the matters of masses they cannot be penalized due to stagnant attitude of the legislator about new Issues. Insofar as case in hand is concerned, request of the petitioner deserves sympathetic consideration for the reason that after completion of codal formalities his request has been turned down mainly on the ground that original Stamp Papers have not been produced. At the cost of repetition it is observed that when the legislator itself has held that Collector can refer matter of refund against unused stamp papers even without producing the original one the stubbornness on the part of competent authority in this regard is not understandable. Public functionaries are supposed to eliminate difficulties of public-at-large but when they themselves try to impede their way to have their legitimate right the entire threadbare of our society would be devastated.
17. Now taking up plea of learned Additional Advocate General that if refund is allowed even in cases where the original Stamp Papers are not produced the National Exchequer would suffer badly, I am of the view that the respondents are not going to pay anything either from their own pockets or from the National Exchequer either they have to repay the amount twice deposited by the petitioner. Had the petitioner claimed anything in addition to that he deposited at the time of issuance of Stamp Papers then the said contention would have some substance. Considering from another angle in the cases where spoiled or unused Stamp Papers are returned by the persons concerned they are issued refund without taking into consideration that the said amount is being repaid from the National Exchequer. This fact alone amounts to discrimination on the part of competent authority.
18. As a necessary corollary to the discussion made in the foregoing paragraphs, I have no hesitation to hold that in cases where Collector certifies that case of a particular person is covered .Under rule 32 of the Rules, 1954, the persons concerned are entitled for issuance of refund irrespective of the fact as to whether the original Stamp Papers have been produced or not especially when despite reporting the matter to the Police the lost Stamp Papers are not traceable.
Consequently, instant petition is allowed and the respondents are directed to issue refund in favour of the petitioner forthwith. There shall be no order as to costs.
19. Before parting with this judgment, it is observed that to ensure that the petitioner or anybody else does not use the Misplaced Stamp Papers, the respondents would be at liberty to have an undertaking from the petitioner to the effect that in case it is established in future that the Misplaced' Stamp Papers were used by him or somebody else or refund was claimed by somebody else against them, he would make the loss good.