MAULVI ANWARUL HAQ, J.----On 27-10-1998 the respondents filed a suit against the appellants. In the plaint it was stated that a sum of Rs.1.6 million was invested by the respondents in the business of the appellant No. 1 on conditions recorded in an agreement dated 15-7-1998. This amount was so invested between the period June, 1977 to July, 1998. To secure the repayment of the amount in accordance with the terms of the agreement which provided for payment of profit at the rate of 4 % per month, inter alia, a promissory note was executed. According to the plaint the appellant No. 1 had failed to pay the profit and the entire suit amount of Rs.35,20,000 has become payable. A decree for the said amount was accordingly sought. The appellants in their written statement alleged the documents annexed with the plaint to be forged on merits the allegations made in the plaint were denied. The said written statement was filed pursuant to the grant of leave w appear and to defend the suit. Following issues were framed by the learned trial Court:-- (1)Whether the plaintiff is entitled to recover Rs.35,20,000 from the defendant? OPP (2)Whether the plaintiff has no cause of action and locus standi? OPD (3)Whether the suit is not maintainable in its present form? OPD (4)Whether the documents annexed with the plaint are fabricated, manipulated and has been prepared through mis--representation and misappropriation and are the result of forgery and fraud? OPD (5)Whether the plaintiff has not come to the Court with clean hands? OPD (6)Whether the suit does not fall within the ambit of Order XXXVII, C.P.C. And actually it falls under Order XXIV, C.P.C.? OPD (7)Whether the suit is hit by Order VII, rule 11, C.P.C.? OPD (8)Relief.
Evidence of the parties was recorded. Issues Nos.2 to 7 were found in favour of the respondents.
Under issue No.1 the learned trial Court found the respondents entitled to the amount of Rs.12,00,000 covered by the said promissory note. However in the operative part of the judgment it was stated that a decree for Rs.16,00,000 is being passed in favour of the plaintiffs/respondents with profit at the rate of 4% per month from the date of the institution of the suit till realization of the decretal amount. A decree sheet was drawn up accordingly on 21-11-2000.
2. Learned counsel for the appellants contends that the suit was based upon an agreement and could not have been instituted and tried under Order XXXVII, C.P.C. That the promissory note was deficiently stamped and as such was inadmissible in evidence; And that the learned A.D.J. Has committed error inasmuch as whereas upon findings recorded the claim of the respondents only to the amount mentioned in the promissory note has been awarded, in the operative part a decree for Rs.16,00,000 has been awarded. Learned counsel for the respondents on the other hand contends that the mere fact that reference. Was made to an agreement would not make the suit incompetent inasmuch as the amount covered by the promissory note is concerned; that the promissory note was admitted in evidence without any objection. Replying to said third contention of the learned counsel for the appellants, the learned counsel for the respondents has raised a rather strange argument that the suit was an ordinary suit and as such the decree as passed by the learned A.D.J. Should be maintained.
3. We have gone through the trial Court's records, with the assistance of the learned counsel for the parties. We find that the pronote Exh. P.2 was introduced in the statement of P.W.2 Asad Munir respondent and was exhibited as Exh.P.2. No objection was raised to the admission of said document in evidence. Nadeem P.W.3, a marginal witness of the pronote Exh.P.2 was also produced to prove its execution. We have gone through the statements of the said witnesses and have not been able to find anything derogatory to the said statements pertaining to the execution of the pronote in cross-examination. We, therefore, do find that the pronote was validly executed by the appellant No. 1.
4. Now coming to the said contentions of the learned counsel for the parties. So far as the said first contention of the learned counsel for the appellants is concerned, we do find that, inter alia, the suit was based on the said. Negotiable instrument i.e. Pronote Exh.P.2. It is the finding of the learned trial Court that the suit was competent only to the extent of the amount covered by the said pronote.
This being so, the mere fact that reference to some other document was made in the plaint would not take the suit out of pale of a suit triable under Order XXXVII, C.P.C. So far as the said second contention it concerned we have already noted above than the document was admitted in evidence without any objection. This being so section 36 of-the Stamp Act, 1899 would come into play and the appellants stand debarred from calling in question the admission of the document except as provided in section 61 of the said Act. Now we find that section 61 of the said Act authorises a Court .Of appeal to determine the amount or duty with which such instrument is chargeable, to impound the instrument and to send it to the Collector. Now it so happened that the learned trial Court at a subsequent stage, took notice of the deficiency of the stamp duty and directed the respondents to make up the same alongwith the prescribed penalty and the same has admittedly been paid. This being so, the admission of the said document in evidence remains unchallengeable. The said third contention of the learned counsel, however, has force. To our mind this appears to be a clerical error. The matter has been discussed under Issue No.1 by the learned trial Court and after considering the entire evidence on record it is concluded that the suit is competent only to the extent of the amount covered by the promissory note i.e. a sum of Rs.1.2 million and the respondents have been held entitled to the same. The figure 1.6 million in the operative of the judgment and consequently in the decree have no nexus with the said finding of fact which of course are recorded by the learned trial Court under Issue No. 1. The argument raised by the learned counsel for the respondents is neither here nor there.
5. For all what has been discussed above, this R.F.A. Is partly allowed inasmuch as the impugned judgment and decree of the learned trial Court is modified so that the figure Rs.16,00,000 mentioned in the operative part of the judgment at page No. 15 thereof and in the decree-sheet prepared on 21-11-2000 shall be read as Rs.12,00,000. The other contents of the judgment and decree shall remain same. The records of the learned trial Court be remitted back immediately. No orders as to costs.