' TALAT QAYUM QURESHI, J.---This appeal arises out of the judgment/decree dated 30-7-1996 passed by learned District Judge, Abbottabad in Civil Suit No,24/1 of 1995 whereby the suit of respondent/plaintiff for recovery of Rs,15,00,000 (fifteen lacs) with interest at the rate of 6% was decreed in favour of respondent/plaintiff against the appellant.
2. Brief facts of the case are that respondent/plaintiff filed suit in the Court of District Judge, Abbottabad on 8-11-1995 under Order 37, C.P.C. For recovery of Rs,15,00,000 with interest at the rate of 15% on the basis of pronote executed by appellant/defendant on 22-11-1993 in favour of the plaintiff/ respondent. The averments of the plaint are that on 22-11-1993, the appellant/ defendant obtained a loan of Rs,15,00,000 and executed pronote on the same day in favour of the plaintiff/respondent and promised to pay the loan amount on demand. The respondent/plaintiff after some time demanded the money back but the appellant/defendant delayed the payment with one pretext or another. The respondent/plaintiff then served the appellant with a notice on which the appellant requested for extension of some time to pay the said amount. Thereafter, the appellant refused to pay the amount and the respondent/plaintiff filed suit in the Court of learned District Judge, Abbottabad. Summon in Form IV as prescribed in Appendix B of C.P.C. Was issued in the name of appellant/ defendant who appeared before the learned Court and filed application for grant of leave to defend the suit. The learned District Judge granted permission to defend the suit vide order dated 16-10-1995.
3. The suit was contested by the appellant/defendant. He filed written statement. The defence set- up by the appellant in the written statement was that he did not receive any amount from the respondent/plaintiff as loan. The appellant being a Property Dealer struck a bargain for purchase of land measuring 3 Kanals and 16 Marlas for sale consideration of Rs,15,00,0000 which was transferred through mutations Nos.5021 and 4368 in the names of wife and brother-in-law of the respondent/plaintiff. The vendors did not hand over possession of the purchased land, therefore, the respondent/plaintiff demanded that the appellant/defendant should execute a pronote as a security and it was on his demand that the appellant/defendant executed pronote dated 22-11- 1993 for Rs,15,00,000. The said pronote was stated to be without any consideration and result of coercion. Out of the pleadings of the parties the following issues were framed:--
(1) Whether plaintiff has got a cause of action? OPP
(2) Whether plaintiff is estopped to sue? OPD
(3) Whether the suit is incompetent? OPD
(4) Whether plaintiff loaned Rs,15,00,000 to defendant on the basis of pronote dated 22-11-1993 and he is entitled to recover this amount with interest as prayed for? OPP
(5) Whether Pronote in question is fictitious, fraudulent and procured with undue influence? OPD.
(6) Relief.
4. After recording the evidence of the parties and hearing the arguments, the learned District Judge passed decree for recovery of Rs,15,00,000 and interest at the rate of 6% per annum from the date of institution of the suit till the date of actual payment of decretal amount against the appellant/defendant with costs.
5. The learned counsel for the appellant argued that the suit of the respondent/plaintiff was not maintainable as it was based on pronote Exh.P.W.1/1 which does not bear the revenue stamp as required under the law. The stamps which have been affixed on the second part of the said pronote, which are a receipt, have not been cancelled, hence the suit was liable for dismissal. He placed reliance on Sohan Lal Nehal v. Reghu Singh and others AIR 1934 Lah.
606.
6. He further argued that the perusal of Exh.P.W.1/1 would show that two witnesses have been cited therein. If the witnesses are cited on the pronote, it was argued by the learned counsel, that it looses the character of a pronote and shall be treated as a bond. He further argued that one of the witnesses of the pronote Zain Muhammad Khan was not produced by the respondent/plaintiff which shows that the said witnesses did not support the case of the plaintiff.
7. The next contention of the learned counsel of the appellant was that the stamps on the pronote were not cancelled before filing the suit, therefore, the same was not admissible in evidence as per provisions of section 35 of the Stamp Act.
8. He further argued that the pronote Exh.P.W.1/1 was without any lawful consideration. It had been executed only for the purposes of security for the land purchased by the respondent/plaintiff in the names of his wife and brother-in-law the bargain of which was struck through the offices of the appellant.
9. Sardar Muhammad Irshad, Advocate, the learned counsel representing the respondent/plaintiff argued that the plaintiff had filed the suit under Order 37, C.P.C. On the basis of pronote which is a negotiable instrument and it was the Court of the learned District Judge which had the jurisdiction to decide the suit. The appellant neither in the written statement nor in the grounds of the appeal nor in his statement recorded before the trial Court denied the execution of the said pronote. The pronote was exhibited as Exh.P.W.1/1 without any objection. If the said pronote was not "duly stamped" or "under stamped" the defendant/appellant should have raised objection regarding its admissibility, which as mentioned above, was not raised. The learned counsel further argued that once an instrument has been admitted in evidence without any objection thereon under section 36 of the Stamp Act such admission cannot be questioned at any stage of the suit on the ground that the instrument has not been "duly stamped".
10. Replying the second argument of the learned counsel for the appellant that with the citation of witnesses on the pronote it looses the character of being a pronote and should be treated as bond, the learned counsel argued that in order to determine as to whether a particular document was a promissory note or bond, intention of parties was a very necessary circumstance to be taken into consideration and it must be seen whether the parties intended that the document should be negotiable or that it was merely to serve evidence of the debt. With the citation of two witnesses the instrument would not loose its character of being promissory note. He relied upon Farid Akhtar Hadi v. Muhammad Latif Ghazi and another 1988 CLC 2397.
"Promissory note or bond---distinguishing features---In order to determine as to whether a particular document was a promissory note or bond, intention of parties was a very necessary circumstance to be taken into consideration and it must be seen whether parties intended that document should be negotiable or that it was merely to serve as evidence of the debt."
' The learned counsel advancing his argument invited our attention to the statement of the appellant/defendant in which he admitted in the cross-examination, "I put my signatures on the pronote after going through its contents". He stated at bar that the appellant/defendant did not raise any objection regarding the nature of the instrument in the written statement or in the grounds of appeal, as such now he cannot raise such an objection.
11. Meeting the third argument of the learned counsel for the appellant, Sardar Muhammad Irshad, Advocate argued that if the stamps on the pronote Exh.P.W.1/1 were not cancelled it was the duty of the appellant/defendant to have raised such objection when it was being exhibited. Once a document is exhibited without any objection then under section 36 of the Stamp Act, its admissibility cannot be questioned on the ground that the stamps were not cancelled or it was under stamped. He placed reliance on Rehmat Wali v. Wahid Baldish NLR 1979 Civil SC 809, in which it has been held, "Promissory note having adhesive stamp fixed on it which has not been cancelled--Not covered by expression 'duly stamped'--Promissory note received in evidence in violation of section 12 can be admitted in evidence--Its admissibility not open to question under section 36."
12. Replying the fourth argument that the pronote Exh.P.W.1/1 was without lawful consideration, the learned counsel representing the respondent/plaintiff argued that it was the burden of the appellant to have shown that the said pronote was without lawful consideration. The plaintiff through his overwhelming evidence has proved the fact that the appellant had obtained a loan of Rs,15,00,000 which was to be paid on demand and it was in that consideration that the pronote was executed. Not only the plaintiff in his statement in clear words has stated that the defendant/appellant had taken a loan of Rs,15,00,000 and executed the pronote but Mr. Lal Khan Anwar, Advocate who was scribe of the pronote has stated that the pronote Exh.P.W.1/1 was in his handwriting and correctly bore his signature as well as the signatures of the witnesses. The defendant/appellant also signed the said pronote in his presence and the payment of loan amount in cash was made in his presence and in presence of other witnesses. After about two months of the execution of the said pronote, the appellant/defendant requested him to get extention of payment of the amount to the plaintiff/respondent on which he approached the respondent/plaintiff who allowed a period of six months' extention on his request. In rebuttal of this evidence, the appellant did not produce any witness. The witnesses produced by him in his support were to the effect that he had struck a bargain of land purchased by the wife and brother-in-law of the plaintiff but this fact too could not be proved by the appellant because the Mutations Nos.4368 and 5021 had been attested on 6-6-1991 and 28-12-1992 respectively and then was a past and closed transaction. Moreover, Bashir P.W.4 who purchased the property alongwith his sister stated that the sale consideration had been paid in toto and they were in possession of the said property.
The learned counsel stated that per provisions of section 118 of Negotiable Instrument Act, the presumption is that the pronote Exh.P.W.1/1 was executed with lawful consideration. He prayed that the appeal may be dismissed with heavy costs.
13. We have heard the arguments of the learned counsel for the parties and carefully perused the record.
14. We are of the considered view that the suit is maintainable because once a document is admitted to evidence without any objection, it cannot be questioned subsequently, on the ground that the same was not duly stamped or was under stamped. 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. 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. The provisions of Stamp Act are the purpose of protecting the revenue, the failure to comply with Stamp Act may entail penalty. Hence it would seem hardly reasonable that the whole proceedings should be vitiated and thrown away for want of stamp which may in some cases be of a very small amount. The Legislature has, therefore, laid down penalty for non-compliance with the provisions of Stamp Act. They also were alive to the facts that those who have authority to receive, might some times be ignorant of or inattentive to the requirement of Stamp Act. To meet such cases, section 36 was enacted, which provide's that a document once admitted in evidence although not admissible by virtue of section 35 of the Act will 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 is reproduced below:-- "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."
15. In the case of Rehmat Ali v. Wahid Bakhsh NLR 1979 Civil SC 809, it was held by their lordships as under:-- "Promissory note having adhesive stamp fixed on it which has not been cancelled---Not covered by expression 'duly stamped'---Promissory note received in evidence in violation of section 12 can be admitted in evidence---Its admissibility not open to question under section 36."
' In the case of Ch. Muhammad Saleem v. Muhammad Akram PLD 1971 SC 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 affect 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 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."
' Likewise in the case of Farid Akhtar Hadi v Muhammad Latif Ghazi 1993 CLC 2015, it was held, "Understamped promissory note admitted in evidence without objeciton---Effect---Document once admitted in evidence although not admissible by virtue of S.35, Stamp Act, could not be challenged at any subsequent stage of the same suit or proceedings on the ground that such document had not been duly stamped."
' Similarly in the case of Muhammad Akbar Khan v. Saeed Khan PLD 1978 SC (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 v. Muhammad Ahmad PLD 1977 Kar. 49 it was held, "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 naught by section 36 but its effect is only limited to safeguarding revenue due to State, it is a matter of no concern to the parties. "
' In case V.E.A. Annamalai Chettiar and another v. S.V.V.S. Veerappa Chettiar and others AIR 1956 SC 12 it was held that, "Document admitted by Lower Courts---Objection to such admission at appellate stage.
' Where a document has been admitted in evidence by Lower Courts such admission cannot be called in question at any stage of the proceedings on the ground that it has not been duly stamped. The provisions of section 86, Stamp Act preclude the appellant from raising any objection against the admission of the document at appellate stage."
' In the case of Sikandar Ali v. Mst. Alhamra Begum PLD 1969 Dacca 2198 it was held in case of a receipt, wherein 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. v. Aminpur Union Cooperative Multipurpose Society Ltd.
PLD 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 an 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."
' Similarly, in case of Abdul Hashim v. Serajul Haque and others PLD 1961 Dacca 596 a Division Bench of Dacca High Court has also held the same view.
16. The argument of the learned counsel for the appellant that the pronote Exh.P.W.1/1 was without any consideration is not tenable. The evidence on record shows that the appellant/defendant had received a sum of Rs,15,00,000 in cash in presence of witnesses. Not only the plaintiff /respondent in his statement has stated that the defendant/appellant had obtained a loan of Rs,15,00,000 on 22- 11-1993 and also executed pronote on the same day in his favour with the promise to pay the amount of loan on demand but Lal Khan Anwar, Advocate who is the scribe of the pronote Exh.P.W.1/1 also confirmed that the said pronote was in his handwriting and that it correctly bore his signatures alongwith other witnesses. He further stated that the said pronote was signed in his presence by the defendant and the payment of loan amount in cash was also made by the plaintiff/defendant in his presence and in presence of other witnesses, so much so that after about 2 months of execution of pronote the appellant/defendant requested him to get extention for the payment of the amount for which he approached the plaintiff/respondent who allowed extention of six months on his request but despite that, the amount was not paid back to the plaintiff. The appellant/ defendant had not been able to produce any evidence inspiring confidence in rebuttal of the evidence produced by the plaintiff. He had rather in his statement clearly admitted that he had executed the pronote after reading its contents. The defendant is a Property Dealer and fully knew the consequences of execution of the pronote. He has neither denied the execution of the pronote nor has taken any objection to its admissibility when the same was produced in Court and duly exhibited. We have no reason to disbelieve the statement of plaintiff as well as the statement of a respectable Advocate (Lal Khan Anwar). We feel no hesitation in holding that the pronote was executed for consideration of the loan amount of Rs,15,00,000. Even otherwise as per section 118 of the Negotiable Instrument Act the presumption was also to be in favour of respondent/plaintiff.
Section 118 of Negotiable Instruments Act is reproduced below:-- "118. Presumptions as to negotiable instruments.--- Until the contrary is proved, the following presumption shall be made; of consideration; (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, endorsed, negotiated or transferred for consideration; as to date; (b) that every negotiable instrument bearing a date was made or drawn on such date;
(c) ..
(d) ..
(e) ..
(f) ..
(g) .
17. In these circumstances, when it has been established that the amount of loan was paid to the defendant/appellant, the instrument, i.e, promissory note has been produced and duly proved as having been admitted, its execution having not been denied by the appellant, consideration having been passed, the appellant/defendant is liable to pay the amount of loan mentioned in promissory note alongwith interest to the respondent/plaintiff. We, therefore, find no justification to interfere with the judgment/decree passed by learned District Judge on 30-7-1996 in Suit No,24/1 of 1995. We, therefore, dismiss this appeal with costs.