' ALI HUSSAIN OAZILBASH, J.--This is an appeal by leave from the order of the learned Chief Justice of the Peshawar High Court, dated 1-2-1986.
2. The facts as given in the plaint are that Shuja-ud-Din (respondent No,4) is the general attorney of respondents Nos.1 to 3. He is the husband of respondent No,2. He agreed to sell quarter No,11, the boundaries of which have been given in the heading of the plaint, situate in Zaryab Colony, Peshawar City, for a consideration of Rs,20,000, and had received a sum of Rs,1,000 as earnest money on 29-8-1979 against which he executed a receipt which is Ex.PW1/1. It was stipulated between the parties that the remaining sale consideration would be paid to the vendors- respondents by the 30th of December, 1978.
3. It was on 9-12-1978 when the appellant received a notice from the vendors demanding payment of the remaining sum before 15-12-1978. On the receipt of the notice, the appellant approached respondent No,2 and her husband respondent No,4. The said respondents again repeated the demand for the payment of Rs,19,000 and advised the appellant to file a suit in the Court of the Senior Civil Judge and obtain a consent decree. This arrangement was not agreed to by the appellant, as a result of which some harsh words were exchanged and the respondents refused to honour the sale agreement. The appellant then filed a suit for specific performance of contract.
This suit was resisted and the learned trial Court after recording the evidence produced by the parties dismissed the suit of the appellant vide judgment dated 6-11-1984. The appeal filed by the appellant before the learned District Judge and his revision in the High Court were also dismissed on 16-9-1985 and 1-2-1986.
4. We have heard the learned counsel for the parties and have gone through the record of the case. The Courts below have non-suited the appellant on the ground that he has failed to establish his case. In reaching this finding the Courts have also kept the document Ex.PWI/1 out of consideration because the same was not stamped. This conclusion was obviously incorrect in view of proviso (a) to section 35 of the Stamp Act. It lays down: "Section 35..............
' Provided that---
(a) any such instrument not being an instrument chargeable with a duty of one anna (or half an anna) only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion:"
This document thus should have been admitted in evidence on payment of the duty chargeable and controversy decided on merits. Furthermore, Shuja-ud-Din respondent who was instrumental in striking the bargain did not appear before the Court to rebut the claim of the appellant. His absence has created doubt in our mind about his bona fides.
' The view that we have formed in the matter is that the Courts below have not considered the case in its true perspective. We, therefore, accept the appeal, set aside the judgments and decrees of the Courts below and remand the case to the trial Court to decide the case afresh after recording necessary evidence, if so required. There is, however, no order as to costs.