' This Regular Second Appeal was admitted to regular hearing on 9-6-1966 to examine, interalia, the contention on the authority of Ghulam Farid v. The Board of Revenue, West Pakistan, Lahore, PLD 1960 (WP) Lahore 211, that the learned Civil Judge had no jurisdiction to impose penalty under the Stamp Act in respect of a document purporting to be a deed of mortgage.
2. The facts giving rise to this appeal, in brief, are that on 21-10-1963 the respondent Fazal Din (since deceased and represented the legal heirs) filed a suit against the appellant Sardar Khan for a declaration to the effect that the respondent's claim of, being a mortgagee of 5 Kanals and 1 marla land situated in village Malhaya Kalan, Tehsil Kharian, District Gujrat on the basis of mutation No,1029 sanctioned on 22-9-1963, was untenable inasmuch as the mutation was ineffective and not binding on him for the reason that it had been obtained collusively and without consideration.
Lie also prayed for a permanent injunction restraining the defendant from disturbing his possession of the land in suit. In his defence, the defendant pleaded that the land had been mortgaged with him by the plaintiff for a sum of Rs,1,500 on the, basis of an agreement deed executed by him. He claimed that possession of the land was promised to be delivered to him but then not in fact. Delivered. Learned trial Judge set down for trial the following two issue:-
(1) Was the suit land mortgaged in favour of the defendant, when and for what consideration?OPD.
(2) Did the plaintiff receive the mortgage amount, if so, what is its effect? OPD (onus objected to).
3. During the trial of the suit the alleged mortgage deed was brought up before the learned trial Judge who, being of view that the same was insufficiently stamped, impounded it and required Sardar Khan to deposit the deficiency in stamp and penalty by 10-12-1964. The required sum was not paid by the due date but the case was adjourned to 2-2-1965 at the request of his counsel, on the condition of payment of Rs,10 as costs of adjournment. It appears that in the meantime the document in question was sent over to the Collector for purposes of recovery. On 2-5-1965, again neither the required amount was paid nor the costs and a further adjournment was requested which was granted on the condition of payment of Rs,100 and the case was put off to 12-3-1965. On this date the defendant himself was present in the Court and expressed his inability to pay the amount as well as the costs. Accordingly the learned trial Judge closed his case under Order XVII, Rule 3 of the CPC. Then, on 17-3-1965, after refusing to allow oral evidence desired to be produced by Sardar Khan, he decreed the suit against him. An appeal filed there against by Sardar Khan was also dismissed by the learned Additional District Judge, Gujrat, on 31-7-1965.
4. In this appeal, learned counsel for the appellant has contended that the order of learned trial Judge for payment of penalty was without jurisdiction and he was justified in refusing to comply with it and, as such, penal action could not follow upon his refusal. Be that as it may, this question is only of academic interest now when the document has already been sent to the learned Collector for being dealt with according to law and the proposition now being canvassed by the learned counsel is inconsequential in view of the fact that adjournment in the suit had been asked for and granted twice conditionally, on payment of costs which were not paid. Learned counsel does not dispute this fact and, as such, action under Order XVII, Rule 3 of the CPC was .Eminently justified, Validity of this order was not questioned by Sardar Khan even in his appeal below. Burden of proof of both the issues was on the defendant which remained un-discharged for want of evidence.
5. In the circumstances there is no merit in this appeal which is accordingly dismissed with costs.