' SAIDUZZAMAN SIDDIQUI, C.J.---The petitioner is seeking leave to appeal against the judgment of a learned Judge in Chambers of Lahore High Court, Multan Bench, dated 11-10-1999, whereby Regular First Appeal No.1 of 1988 was dismissed with the following direction:-- "14. For the reasons above, there is no substance in this appeal which is accordingly dismissed. It is, however, directed that if the balance amount of consideration in terms of impugned decree has not so far been deposited, the same shall now be deposited by the respondents within three months, failing the suit shall be deemed to have been dismissed."
2. In seeking leave to appeal, the learned counsel for the petitioner contended that the agreement of sale alleged by the respondents could not be proved as one of the marginal witnesses of the said agreement was never produced and examined before the trial Court. The trial Court as well as the learned 1st Appellate Court came to the conclusion that the agreement was a registered document which was witnessed by Muhammad Younis, Lumberdar, and Ch. Shah Muhammad. Out of the two attesting witnesses of the document, Muhammad Younis was produced in Court. The respondents also produced before the Court Niaz Ahmed Khan, the person who drafted the agreement of sale, who also supported the case of the respondents. The document was duly registered and was thumb-marked by the petitioner. Both the Courts below after analysing the evidence of the above mentioned witnesses, came to the conclusion that the respondents succeeded in proving the execution of sale agreement and payment of sale consideration. The learned counsel for the petitioner contended before us that Muhammad Yunis, Lumberdar, who was produced in the case, did not belong to the area where the land is situated, and therefore, his evidence should not have been accepted by the Courts below. The learned counsel in support of his above contention is unable to cite any provision of law which required that the marginal witness of a document must belong to the area where the property is situated. The learned counsel also took exception to the consideration by the Courts below that the previous proceedings of the suit filed by the petitioner's wife against the respondents wherein she challenged execution of the agreement of sale by the petitioner on the ground that the petitioner was not in his proper senses when he executed the documents, and therefore, it was not binding on her. This suit filed by wife of petitioner was dismissed and judgment and decree of the trial Court was maintained up to the High Court. The learned counsel for the petitioner contended before the High Court as well as before us that the record and proceedings of that case could not be taken into consideration. This contention was repelled by the learned Courts below on the ground that the certified copies of the judicial proceedings between the parties could be taken note of to prove the relevant facts. There appears to be no legal infirmity in the above conclusion of the Courts below. The question agitated by the learned counsel for the petitioner before this Court is purely a question of fact which has been concurrently found by the two Court below against the petitioner. There is neither any misreading of evidence by the Courts below nor non-consideration of any material piece of evidence on record by the two Courts below. No case for interference with the judgment of the High Court is made out. The petition is, accordingly, dismissed and leave is refused.
Petition dismissed.
2000 SCMR 1010 #TBS #TBE [Supreme Court of Pakistan] Present: Saiduzzaman Siddiqui, C.J., Sh. Raiz Ahmed and Ch. Muhammad Arif, JJ Messrs JAME'S CONSTRUCTION COMPANY (PVT.) LIMITED, LAHORE through Executive Director and others---Petitioners versus PROVINCE OF THE PUNJAB through Secretary to the Government of the Punjab (Communication and Works) Department, Punjab, Lahore and others---Respondents Civil Petitions Nos.893-L and 1059-L of 1999, decided on 24th November, 1999.
(On appeal from the common judgment, dated 3-5-1998 passed by the Lahore High Court, Lahore in Civil Revision No.1915 of 1998).
Arbitration Act (X of 1940)--- ----S.20---Stamp Act (II of 1899), Ss.12 & 36---Registration Act (XVI of 1908), Ss. 14 & 49--- Constitution of Pakistan (1973), Art.185(3)---Award through the intervention of Court---Liability of stamp duty---Registration--Leave to appeal was granted by Supreme Court to examine the contentions that award having come about through the intervention of the Court, same was not liable to stamp duty in terms of S.12, Stamp Act, 1899; that award having been admitted in evidence the result was that under S.36, Stamp Act, 1899 its admission could not be challenged in the suit on the allegation that the same was deficiently stamped; that award coming into existence without the intervention of the Court was compulsorily registrable under S.14, Registration Act, 1908 otherwise same would be an invalid document without creating any right notwithstanding amendment in S.49, Registration Act, 1908 and that there was no authoritative pronouncement by Supreme Court of Pakistan on the points---Respondent (counsel for the Provincial Government) by not controverting the stand taken by the petitioner contended that case of the Provincial Government to the effect that no person or Authority could be permitted to thrive on his/its ignorance of law certainly revolved around the resolution of the controversy one way or the other [pp. 1012, 1013] A & B Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCM R 816-and Darshan Singh v. Messrs Forward India Finance (Pvt.) Ltd., New Dehli and others AIR 1984 Delhi 140 ref. Ghulam Haider Al-Ghazali, Addl. A.-G., Punjab with Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.
Raja Abdul Razzaq, Advocate-on-Record for Respondents. Date of hearing: 24th November, 1999,
' CH. MUHAMMAD ARIF, J.---By this order we intend to dispose of Civil Petitions Nos.893-L and 1059-L of 1999 which arise out of a judgment, rendered by a learned Judge in Chambers of the Lahore High Court, Lahore in Civil Revision No.1915 of 1998 against judgment, dated 19-11-1998 passed by a learned Civil Judge 1st Class Lahore directing petitioner Messrs Jame's Construction Company (Pvt.) Limited in a suit under section 20 of the Arbitration Act, 1940, hereinafter referred to as the Act, appointing two Arbitrators on 12-10-1997 and directing them to announce their award and submit the same in Court, with the following observations in relation to the petitioner in Civil Petition No.1059-L of 1999 i.e., Province of Punjab's application, dated 31-10-1998 for de-exhibiting the Award on the ground that the same is unstamped and is liable to be impounded:-- "Therefore, for making the award admissible in evidence which is not duly stamped, the same is liable to be impounded and same is hereby impounded and 10 times penalty is imposed. The petitioner is directed to pay 10 times stamp duty with ratio of 3% of the value of subject-matter."
2. The learned Judge in Chambers heard the arguments of both sides and after noticing their respective pleas that (1) the award under reference came into being with the intervention of the Court in a suit under subsection (2) of section 20 of the Act, being proceedings in the suit and any award submitted in the Court as per terms of reference is an award made by order of the Court and, therefore, exempt from duty and (3) the order of the trial Court is perfectly legal and calls for no interference in exercise of Revisional Jurisdiction under section 115, C.P.C. In that the duty is to be paid and the trial Court was justified in impounding the same to reach the following conclusion:-- "10 In the light of above discussion and keeping in view the provisions of sections 35, 36 and 61 of the Stamp Act as section 35 applies to Judges, Arbitrators and Local Commissioners, it is the duty of a Judge to safeguard the interest of revenue and take action suo motu, whether the counsel object to the admissibility of a document or not. The defect can be cured even by consent of the parties. This Court even suo motu can direct the impounding of the award and send it to Court for realizing the necessary stamp duty and the concerned party is duty bound to pay the requisite amount. The stamp duty on the award in hand was deficient, therefore, the same should not have been admitted in evidence. It was rightly impounded by the Trial Court, therefore, the direction given by the learned Trial Court for the payment of stamp duty with ratio of 3% on the subject- matter is eminently just and correct and the same is upheld."
"11 As far as the imposition of 10 times penalty is concerned, the learned trial Court was not legally justified in imposing the same as the responsibility and fault cannot be attributed to the petitioner, therefore, the order of the learned trial Court to this effect is not warranted by law.
"12 In the light of above discussion, the Civil Revision is partly accepted. The petitioner is directed to make the payment of deficient stamp duty at the ratio of 3% of the value on subject-matter within a period of two months from today. No order as to costs."
3. Hence these petitions by Messrs Jame's Company (Pvt.) Limited against the Province of Punjab through the Secretary to the Government of the Punjab in the communication and Works Department and others and by the latter against the former.
4. Mr. Raja Abdul Razzaq, learned Advocate-on-Record appearing in support of his client's case has forcefully contended that (1) the award having come about through the intervention of the Court, the same was not liable to stamp duty in terms of Article 12 of the Stamp Act (No.II of) 1899; (2) the award stood admitted in evidence according to the respondents as well and the result is that under section 36 of the Stamp Act, 1899 its admission could not be challenged in the suit on the allegation that the same is being deficiently stamped; (3) the case reported as Mst. Farida Malik and others v. Dr. Khalida Malik and others (1998 SCM R 816) ruled that an award coming into existence without the intervention of the Court is compulsorily registrable under section 14 of the Registration Act (No.XVI of) 1908 otherwise it will be an invalid document sans creating any right notwithstanding amendment in section 49 of the Registration Act and that (4) although a precedent from across the border by Delhi High Court i.e. Darshan Singh v. M/s. Forward India Finance (P) Ltd., New Delhi and others (AIR 1984 Delhi 140), favouring him but there is no authoritative pronouncement by this Court on points 1 to 3 above.
5. Mr. Ghulam Haider Al-Ghazali, learned Additional Advocate-General, Punjab did not controvert the stand taken by the learned counsel for the petitioner-company and contended that the case of the Provincial Government to the effect that no person or authority can be permitted to thrive on his/its ignorance of law certainly revolved around the resolution of the controversy, one way or the other.
6. Leave is granted in both the petitions to consider the afore-referred points.