ABDUL RAHIM KAZI, J.- This suit is filed by the present plaintiff under Order XXXVII rule 2 C.P.C, for recovery of Rs. 2,20,400/-.
2. This suit is based on promissory note said to have been executed by the Defendant on 21-6-1987, which was not honoured by him when the consideration was demanded. The Defendant preferred an application under Order XXXVII rule 3 CPC seeking leave to defend, the suit. This application was supported with an affidavit wherein the defendant raised the plea that his daughter Mst. Shabana was an employee in Ghulshan Cambridge School which was being run by the plaintiff; and that the Plaintiff had an evil eye on his unmarried daughter and, therefore, the defendant stopped her daughter from attending the school and thus the Plaintiff involved him in false cases. He also raised the plea that the said promissory note is a forged and false document. He further raised other legal pleas that the said promissory note is not admissible in evidence under the provisions of Stamp Act; and that in fact it was not a valid promissory note. Accordingly leave to defend was granted and the Defendant filed his written statement. In the written statement in Para-2 the Defendant categorically stated that he had never executed the said Promissory Note nor received any amount and, therefore, the promissory note was without consideration. However, he did not raise the plea that the plaintiff had an evil eye on his daughter serving in the plaintiffs school. In the written statement he also raised all the legal and technical pleas regarding the admissibility and validity of the promissory note.
On these pleadings of the parties, the following issues were settled by the Court on 30-10-1988;
(i) Whether the defendant had executed promissory note dated 25th June, 1987?
(ii) Whether the said Pro-Note is forged and fabricated?
(iii) Whether the defendant did not receive consideration of the above Pro-Note?
Whether no cause of action has accrued to the plaintiff?
(v) What should the decree be?
3. By consent it was ordered that the parties will file their affidavits-in- evidence. The plaintiff filed his own affidavit" and also the affidavit of one Ghulam Abbas. This Ghulm Abbas had left for Saudi Arabia and, therefore, he could not be subjected to cross-examination and thus his affidavit-in- evidence was excluded from consideration. The defendant also/filed his own affidavit-in-evidence.
The Plaintiff was cross-examined twice, once by the Advocate for the Defendant and on second occasion by the defendant himself, while the Defendant t6s also cross- examined and both the parties had closed their side and the matter was put off for arguments.
4. I have heard the arguments of the plaintiffs counsel Mr. Abdul Sattar G. Shaikh and the defendant, who is appearing in person. My findings on issues are as under; ISSUES No.1 to 3:
5. I will take up these issues jointly as they are connected issues. At the very out set Mr Abdul Sattar G. Shaikh, the learned counsel for the plaintiffs has referred to the cross-examination of the Defendant, who has admitted that he had put his signatures on the promissory note but states that the same was obtained from him by fraud at his house. The learned counsel has also referred to Paras-5 and 6 of the affidavit-in-evidence filed by the defendant wherein also he has admitted having put his signatures on the said promissory note. In cross- examination he further states that the contents of the promissory note were filled in by his daughter, who in those days used to live with him and still continues living with him. However, he states that he did not sign the promissory note in presence of his daughter. The original promissory note has been produced by the plaintiff in his evidence as Ext. P/19. The plaintiff has explained in his evidence that the daughter of the defendant had been working in the School of which we he was a Director; and that the husband of another daughter of defendant, namely, Burhanuddin Siddiqi was his friend; and that they had approached the plaintiff for joining in a partnership with them as the said Burhanuddin Siddiqi had an Import Licence for waste oil reprocessing plant from Government of Pakistan; and that the said Burhanuddin Siddiqi being in Saudi Arabia could not manage the import of that licence and set up the business. They, however, stated that at the relevant time, the Defendant was running a business in partnership with two other persons in the name of "Al-Khair"; and that they were not getting enough profit so that they wanted to dissolve that partnership and have the present plaintiff as partner on investment to be made by him. The Defendant had wanted the money to pay off the other two partners in the partnership and to execute a new partnership with the plaintiff.
Accordingly, on 21-6-1987 the Plaintiff paid Rs. 2,00,000/- to the defendant. This amount of Rs.
2,00000/- was received by the plaintiff as consideration for sale of the house of his wife on the very day which fact is borne out by receipt produced by him as Ext. P/12. The plaintiff has further stated that earlier to that he had paid a sum of Rs,20,400/- to the defendant for getting office accommodation booked and from this amount the defendant got office booked on 6th Floor of ARRAY SQUARE, Sharae Liaquat, Karachi against a katcha receipt in his own name. All these contentions of the Plaintiff are supported by documents produced by him which are Deed of Partnership between the defendant and two others, namely, Syed Muhammad Abdul Khair and Syed Khalid Jamal (Ext. P/9) and agreement for dissolution of Partnership between the said three partners Ext. P/14. The plaintiff has also submitted a draft in evidence as Ext. P/2 sent by the defendant to the plaintiff at Murree where he was having his summer holidays. This draft is typed and on top of it the words "f or Mr. Farid'' are written and in hand. The defendant in his cross- examination has admitted that these words were written by him; and that he had sent an envelope to the plaintiff at Murree but states that he did not know as to what was contained in that envelope which was handed over to him by an Advocate for sending the same to the plaintiff. All these stands taken by the defendant do not inspire confidence specially when it is admitted by him that the promissory note was signed by him. All that he claimed is that this signatures is taken at his house through fraud. In these circumstances, the burden would shift on the defendant to explain as to what was the fraud played upon him. The defendant is a literate person and quite intelligent who can handle and argue his own case. He has not been able to prove any fraud having been played on him except that in his written statement he has stated that he was induced for Partnership by the plaintiff on assurance that the plaintiff will make the investment of the share of the defendant and by way of abandon or caution a promissory note has got executed from him.
6. As against this the evidence of the plaintiff is that because of his friendly relations with the said Burhanuddin Siddiqi and the fact that the daughter of the defendant worked in the school he had agreed to became a partner with them and advanced the amount to them on two occasions and thus a promissory note of the total amount was got executed. In these circumstances, the presumption has also to be in favour of the plaintiff under section 118 of the Negotiable Instruments Act. The provisions of clauses (a) and (b) of section 118 of the Negotiable Instruments Act read as under; "118. Presumption as to negotiable instrument of consideration- Until the contrary is proved, the following presumption shall be made:-
(a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, endoresed, negotiated or transferred for consideration;
(b) as to date-that every negotiable instrument bearing a date was made or drawn on such date. . (c).......................... (d)...............
7. Even in cross examination the defendant admits that Bank Guarantee of Rs.1,00,000/- was also arranged by the plaintiff on his behalf: All these facts show that the defendant had not only executed the promissory note but also received consideration.
It may further be observed that the defendant admits having purchased the office in Arkay Square, whereas in Para-5 of his affidavit-in-evidence he states that he had migrated from East Pakistan and having suffered there he had no ready cash to invest. The fall of East Pakistan had taken place in November,1971, whereas the defendant in his cross-examination has admitted that he came to Pakistan in 1976-1977. The evidence of the defendant is full. Inconsistent/In the written statement he denies the execution of the promissory note, whereas in his affidavit-in-evidence he admits having executed the same, and so also in cross examination. As regards the receipt of consideration the defendant denies the same but admit, arrangement of Bank Guarantee through the plaintiff. The documents discussed above have fully established that the amounts was paid to the defendant, in these circumstances, I answer Issues No.1 and 3 in affirmative and Issue No.2 negative.
ISSUE NO.4
8. As regards this issue, the discussion on Issues No.1 to 3 show that the promissory note having been executed by the Defendant and consideration having passed the defendant is liable to pay the amount of the promissory note to the plaintiff and thus the cause of action has accured to the plaintiff for filing of this suit when the defendant did not honour the promissory note. It may be observed that a summary suit, after leave to defend is granted and written statement is filed; is to proceed like an ordinary suit as laid down in Order XXXVII rule. C.P.C. In the present case the promissory note has been produced and duly proved as having been admitted. Thus the issue is to be answered in favour of the plaintiff.
9. However, the defendant has raised certain legal pleas with regard to admissibility of the promissory note on the grounds that it contains interpolation in date of signing the promissory not and also being not properly stamped or the stamps affixed to the promissory note note having been properly cancelled. First I will take up the point of admissibility of promissory note. It may be observed that the affidavit-in-evidence of the plaintiff was filed on 19-2-1989 which is Ext.7. Issues were settled on 30-10-1988 and all the documents were filed in Court during the time allowed by the Court after settlement of issues. These documents also contain a copy of promissory note and the original promissory note Ext. P/19 was also produced in cross-examination recorded on 24-8- 1989. The defendant thereafter moved applications in the year 1990 praying for impounding of the promissory note and challenging its admissibility. These applications were disposed of by orders passed on 23-4-1990 (C.M.A. No.209/90). This was an elaborate order passed by my learned brother Mukhtar Ahmed Junejo,J. The learned Judge has discussed the case law in this order and held that eight of the required stamps were not cancelled properly and, therefore, the promissory note was under stamped. However, in the same order it has been held that since the promissory note has been produced in evidence, admitted and exhibited, The same cannot be taken out of consideration as required .Under section 36 of the Stamp Act. However, it was observed that the value of the promissory note will be considered at the time of evidence. The Defendant has placed reliance on the following cases;
(i) Sohan Lai Nihal Chand vs Raghu Nath Singh & Others A.I.R. 1934 Lahore 606.
(ii) Pulhraj Surana vs Jawerchand & Others A.I.R. 1957 Rajaasthan 47.
(iii) Gordhassingh & Others vs Suwalal & Kalyanbux & others A.I.R. 1959 Rajasthan 156.
(iv) The above cited case law have been considered by the learned Judge while passing the order dated 28-4-1990. Against this order a High Court Appeal was preferred by the defendant being High Court Appeal No.84 of 1990, which was dismissed on 17-10-1990 by the learned Division Bench of this Court. The defendant then preferred petition for Leave to Appeal being No.573-K of 1990 which was also dismissed by the Hon'ble Supreme Court vide orders passed on 24-4- 1991.
10. Now the point for consideration is as to whether a suit based on a document which is not properly stamped can be maintained or not. Section 35 of the Stamp Act provides for certain documents, not duly stamped to be inadmissible in evidence. There is a proviso to this section also.
However, section 36 of the Stamp Act provides that the document once admitted in evidence although not admissible by virtue of section 35 of the Act could not be challenged at any subsequent stage of the same suit or proceedings on the ground that the same had not been duly stamped.
Section 36 of the Stamp Act reads as under; "36. Admission of instrument where not to be questioned.-Where an instrument has been admitted in evidence, such admission shall not except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."
11. In the case of Ch. Muhammad Saleem vs Muhammad Akram (P.L.D. 1971 S.C. 561) it was held by their Lordships as under; "This view is on principle too sound for once a document has been admitted in evidence without objection its admissibility cannot subsequently be challenged, on any technical ground or any ground which does not effect the parties. The collection of revenue is no concern of the parties.
That purpose is adequately served by section 61. There is no reason, therefore, as to why the bar created by section 36 should not be given effect to. In the present case there can be no manner of doubt that the document was admitted, marked as an exhibit without any objection and when it was put to a number of witnesses in examination and cross-examination. The objection on the ground of want of stamp cannot, therefore, be raised at this stage."
12. Also in the case of Muhammad Akbar Khan vs Saeed Khan (P.L.D. 1978 S.C.(AJ &K) (6) it has been held by their Lordships that the document once marked as exhibit and also shown to witness for purpose of identification became clear admission of instrument in evidence. In the same case it was further held that the question of dismissal of suit on grounds of instrument being not sufficiently stamped or penalty not being paid does not arise by virtue of provisions of section 36 of the Stamp Act. In yet another case of Samiullah vs Muhammad Ahmed (P.L.D. 1977 Karachi 49) a Division Bench of this Court had held as under; "I am, however, of the view and that appears to be the view taken by Supreme Court of Pakistan, that section 36 is categorical in its terms and no limitation can be read into it more particularly as the limitation intended by the legislature has been incorporated therein. As was observed by the Supreme Court stamping is a matter of revenue with which the parties are unconcerned and if the Legislature in categorical Terms states that once a document is admitted it cannot be questioned later on at any stage of the trial such categorical language must be given effect to. It is possible to take the view that if the purport of section 35 was to impose a duty such a purpose must be given effect to and not allowed to be set at naughty by section 36 but its effect only limited to safeguarding revenue due to State, it is a matter of no concern to the parties."
13. In the case of Sikandar Ali vs Mst. Al-hamra Begum (P.L.D. 1969 Dacca 214).
It was held in case of a receipt, where in the stamps were not cancelled and receipt was admitted in evidence by trial Court, that such admission cannot be called in question later in view of section 36 of the Stamp Act. In another case of Amin Jute Baling Co. Vs Aminpur Union Co-operative Multi- purpose Society Ltd (P.L.D. 1961 Dacca 102) it was held by a Division Bench of the Dacca High Court as under; "Now, section 35 of the Stamp Act prohibits a Court from admitting in evidence and instrument which in its view is not duly stamped. This section also prohibits the Court from acting on such document. If the Court, however, wrongly admits such document, the appellate Court is prevented by section 36 of the Stamp Act from calling in question the admission in evidence of such an instrument, though it may have been wrongly admitted. In other words, the appellate Court is bound to hold that admission was proper."
14. Similarly, in the case of Abdul Hashim vs Serajul Haque & Others (P.L.D. 1961 Dacca 5%) a Division Bench of Dacca High Court had also held the same view.
15. In view of the above case law, I am of the view 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. The admissibility of such instrument cannot be challenged except of course as provided in section 61 of the Stamp Act. Accordingly, the contention raised by the defendant is rejected.
ISSUE NO.5:
16. The upshot of the above discussion is that the suit of the plaintiff js decreed for Rs.2,20,400/- with mark-up at 6% as provided in section 80 of the Negotiable Instrument Act as promissory note does not show any rate of interest. The mark-up will be payable from the date of the institution of the suit till realization of the amount.
17. Above are the reasons for the short order announced in Court on 19th May, 1993.