SYED JAMSHED ALI, J.---The judgment and decree dated 20-6-2001 passed by the learned Additional District Judge, Gojra has been assailed in this appeal. It arises out of the following circumstances.
2. On 11-10-1999 the respondent herein filed a suit with the averments that on 10-10-1996 the appellant borrowed a sum of Rs,10,50,000 from the plaintiff and on the same day executed a promissory note alongwith the receipt Exh.P.1 However, on demand the appellant refused to return the said amount.
3. The suit was filed under Order XXXVII of the Code of Civil Procedure. Leave to appear and defend was granted to the appellant vide order dated 7-2-2000. He submitted written statement and denied the averments of the plaint. It was further contended that the promote did not bear proper stamps nor these were cancelled in accordance with law. Therefore, the suit was not maintainable.
On facts it was averred that from time to time the plaintiff had received an amount of Rs,30,82,314 for his Petroleum Company from the bank account of the appellant and when the appellant demanded the said amount, the promote was forged in collusion with the witnesses.
4. Necessary issues were framed and the suit was tried. While the plaintiff examined two witnesses and himself appeared as his own witness, the appellant examined himself as D.W.1. On considering the evidence produced in the case the learned trial Court found that an amount Rs,6,50,000 was advanced by the plaintiff-respondent to the appellant. Accordingly, the suit of the plaintiff- respondent was decreed to the said extent.
5. The learned counsel for the appellant contends that the stamps affixed on the pronote were not cancelled as required by section 12 of the Stamp Act with the result that by virtue of section 35 of the said Act it was not admissible in evidence. Reliance was placed on K.M. Munir v. Mirza Rashid .Ahmad (PLD 1963 (W.P.) Karachi 905), K.M. Munir v. Mirza Rashid Ahmad (PLD 1964 (W.P.) Karachi 172) and Mirza Arif Baig v. Mubarak Ali (PLD 1992 Lah. 366). It was next contended that under Article 49 of the Stamp Act as amended by Punjab Finance Act, 1995 (No,V1 of '1995), a stamp duty of Rs,100 was required. It was, thus, deficiently stamped and was not admissible in evidence.
6. The learned counsel for respondent-plaintiff submits that stamps affixed on the pronote were duly cancelled by crossing them with a line. According to him the object of the cancellation of stamp was to render them unusable. He further contends that decree is based on the evidence of the plaintiff-respondent that an amount of Rs,6,50,000 was borrowed by the appellant and irrespective of the fact whether the pronote had any alleged defect the suit was maintainable and has rightly been decreed. Reliance was placed on U.B.L. Ltd., Mianwali v. Muhammad Khan and another (PLD 1988 Lahore 424). He relied on section 35 of the Stamp Act to contend that insufficiency of the stamp on a pronote was rectifiable. Section 36 of the said Act was also relied up to contend that once Exh.P.1 was admitted in evidence, such admission cannot, except as provided in section 61 of the Stamp Act, be called in question at any stage of the suit or proceedings on the ground that the instrument had not been duly stamped. Reliance was placed on Sirbaland v. Allah Loke and others (1996 SCMR 575), Mst.Sajida Abbas Zaidi v. Syed Arshad Ali Jafri (1990. CLC 1018) and Amin Jute Baling Co., Ltd. v. Aminpur Union Cooperative Multipurpose Society Ltd. (PLD 1961 Dacca 102).
7. The submissions made by the learned counsel for the parties have been considered. The pronote bears 25 adhesive stamps of Rs,2 each. Out of these 25 stamps 23 have been crossed by drawing a line while two stamps on the face of the pronote, one on the top left and one on the extreme right do not bear any line.
8. Section 12(3) of the Stamp Act prescribes the manner of cancellation of an adhesive stamp which is reproduced hereunder for facility of reference:-- "(3) The person required by subsection (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner." (Underling is ours to supply emphasis).
A perusal of the aforesaid provision shows that an adhesive stamp may be cancelled in any effectual manner besides writing the name or initials of the person executing an instrument chargeable with duty. The object of cancellation of stamp has been given in subsections (1)(2) of section 12 i,e, to avoid its reuse. Subsection (2) also provides the consequence of non cancellation of an adhesive stamp. According to the said provision the instruments shall be deemed to be unstamped only to the extent of the stamp which has not been cancelled.
9. On examination of the pronote Exh.P.1 we are of the view that even by drawing a line on 23 out of 25 stamps, these were duly cancelled and the provisions of section 12 of the Stamp Act had substantially been complied with. The question came up for consideration before the learned Karachi High Court in the case of Mrs.Sajida Abbas Zaidi in which it was held that writing on the stamp the name or initial was not the only mode of cancellation of stamp which could be cancelled by drawing a line across it, thereby it was not capable of being used again and that as such a cancellation was valid. We may also observe here that while interpreting a provision of law, as far as possible, technicalities are to be avoided and an interpretation which advances the cause of justice and thereby public good is to be preferred. In the case of K.M. Munir (supra) an objection was taken that the pronotes were not duly stamped on which the plaintiff was allowed to amend the plaint to base his claim on the original transaction i,e, the loan advanced to the defendant. In that context, the learned Karachi High Court recorded the following observations:-- "(a) If the promissory note embodies all the terms of the contract and the instrument is improperly stamped, no suit on the debt will lie in view of the bar of section 91, Evidence Act, and section 35, Stamp Act. But if it does not embody all the terms of the contract, the true nature of the transaction can be proved and the plaintiff's claim can be decreed on that basis.
(b) In those cases where an instrument has been given as collateral security or by way of conditional payment, a suit on the debt will lie and there would be a cause of action independent of the instrument for its recovery." It may be noted that pronote was for an amount of Rs,10,50,000 while on the basis of the evidence produced in the case it was found that the plaintiff had advanced a sum of Rs,6,50,000 to the appellant and therefore, it is a case in which the suit was not decreed on the basis of the pronote but on the basis of the evidence which established the transaction of lending money by plaintiff to the respondent.
10. In the other case of K.M. Munir (supra) (PLD 1964 Karachi 172) the plaintiff brought a suit on the basis of a pronote which was inadmissible in the evidence. He was however, allowed to amend the plaint and his suit was decreed. The observations recorded in the said case were that even if a single stamp remained uncancelled the pronote was not admissible in evidence. This observation, we say with utmost respect, was inconsistent with the provisions contained in sub section (2) of section (12) of the Stamp Act which is reproduced hereunder:-- "Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall, so far as such stamp is concerned, be deemed to be unstamped." (Emphasis supplied).
A bare reading of the said provision shows that an instrument shall be deemed to be =stamped only to the extent of the stamp which has not been cancelled. In the present case out of 25 stamps of Rs,2 each 23 have been duly cancelled and, therefore, at worst, what could be said was that the pronote was insufficiently stamped to the extent of the uncancelled stamps.
11. A pronote is liable to be stamped under Article 49 of the Stamp Act and by virtue of the amendment made by Punjab Finance Act (VI of 1995) stamp of an amount of Rs,100 was payable as the amount of pronote exceed Rs,Five Lacs. The pronote was thus deficiently stamped to the extent of Rs,54. However, proviso (a) to section 35 of the Stamp Act, which is a curative provision, covers the situation according to which if any instrument is not stamped or insufficiently stamped.
It shall be admitted in evidence on payment penalty (Emphasis supplied). In this case, the livable penalty would be ten times of the deficiency i,e, Rs,540. In 'view of the aforesaid proviso it is not possible for us to hold that the pronote in question which was insufficiently stamped could have formed the basis of rejection of the claim of the respondent.
12. We have also noticed the provision of section 36 of the Stamp Act according to which once an instrument was admitted in evidence it could not be called in question at any stage of the suit or the proceedings on the ground that it was not duly stamped except under section 61 of the Stamp Act. This view finds support from the judgment in the case of Amin Jute Baling Company (supra) in which it was held that even if the Court wrongly admits an instrument not duly stamped the Appellate Court is prevented by section 36 of the Act to call in question the admission of such a document.
13. In the case of Sirbaland (supra) the Hon'ble Supreme Court recorded the following observation:- "10. Adverting to Ch.Khalil-ur-Rehman's third submission that Exh.P.W.1/1 was not admissible for want of payment of proper stamp duty, it may be observed that no objection was raised by Sirbaland or his counsel when the above document was exhibited. In this view of the matter, section 36 of the Stamp Act, 1899,hereinafter referred to as the Act, was attracted to which provides as follows:-- "36. Admission of instrument where not to be questioned.---Where an instrument has beta 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 proceedings on the ground that the instrument has not been duly stamped." In terms of the above section read with section 61 the Act, above respondents had deposited Rs,44, of which they have produced a certificate from the District Accounts Officer, Sialkot, dated 26-4- 1995. In this behalf, reference may be made to the case of Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique (PLD 1978 SC 279), in which it has been held that the object of section 35 of the Act is not to invalidate the instrument not properly stamped but to protect the public revenues. It was further held that unstamped or improperly stamped arbitration agreements were not invalid but only subject to disabilities specified in section 35 of the Act removable in manner prescribed in sections 35 and 36 of the Act. The above, stamping is done at the behest of the Court below."
14. Although an objection was taken in the written statement, yet it appears, that the objection was not pressed when Exh.P.1 was admitted in the evidence. We may also observe that payment of stamp duty is a matter between a citizen and State and an adversary could not be permitted to capitalize on a technicality which was otherwise, not fatal to the suit. We are not persuaded to interpret sections 12 and 35 of the Stamp Act in such a manner that these are allowed to operate as a tyrant master.
15. Reference may also be made to the judgment of the Division Bench of this Court in the case of U.B.L. (supra). In the said case the suit was filed under Order XXXVII of the Code of Civil Procedure.
An objection was taken by the defendant in the suit that the stamp on the pronote had not been cancelled in accordance with law. This objection was upheld by the learned District Court and the suit was dismissed. It was held by this Court that Order XXXVII of the Code of Civil Procedure did not contemplate that suit could only be filed on the basis of a pronote which is valid in accordance with law or which is admissible in evidence. It was held that a suit can be filed under the said Order and can be tried irrespective of the fact whether the pronote was admissible in evidence or not. It was further observed that if apart from the pronote which was inadmissible in evidence, there was independent and sufficient evidence to prove the debt, the Court cannot throw out a case altogether. Accordingly the suit of the Bank was decreed. We may add that a document only affirms a transaction between the parties and is not by itself the transaction so as to exclude the evidence of the transaction. In the case of Mirza Arif Baig supra relied upon by the learned counsel for the appellant, the evidence of the transaction was disbelieved by the learned trial Court which was maintained by this Court.
16. The learned trial Court while decreeing the suit Rs,6,50,000 acted on the testimony of P.Ws. 2 and 3 besides the testimony of the plaintiff who appeared as P.W.1 and believed this evidence in the absence of any rebuttal.
17. We, accordingly, find no merit in this appeal which is, accordingly, dismissed. However, to safeguard the interest of the public exchequer we direct the plaintiff-respondent to deposit an amount of Rs,540 in the Government Treasury under the appropriate head within one month, otherwise the same shall be recovered by the competent authority in accordance with law.