Ch. Ijaz Ahmad, J.--The brief facts out of which the present appeal arises are that the respondent filed a suit against the appellants for recovery of Rs, 5,00,000/- on the basis of promissory note dated 3.5.1999 executed allegedly by the appellants alongwith receipt, before the learned Addl.
District Judge, T.T.Singh. The contents of the plaint reveals that the appellant secured a sum of Rs, 500,000/- from the respondent/plaintiff. Promissory note dated 3.5.1999 was also executed by the appellants in favour of the respondent/plaintiff on 3.5.1999. According to the terms of the pronote, the appellants/defendants were duty bound to pay advance amount till 30.4.2000. The appellants allegedly failed to pay the said amount to the respondent/plaintiff, therefore, the respondent/plaintiff filed suit for recovery of the said amount against the appellants in the said Court. The appellants filed an application for leave to appear and defend the suit before the learned Addl. District Judge, T.T. Singh who granted leave to defend to the appellants/defendants, vide order dated 25.9.2001 subject to deposit of security. The appellants/defendants deposited the security and submitted written statement and controverted the allegations leveled in the plaint alongwith preliminary objections regarding non-maintainability of the suit as the stamp upon the promissory note was not crossed, the promissory note was result of fraud, misrepresentation and without consideration. The appellants/defendants also took a stand in their written statement that they had never secured Rs, 500,000/- from the respondent/plaintiff and in fact the respondent/plaintiff purchased 200 bags of oil cake (Khal) and paid a' sum of Rs, 5,70,000/-. Due to rainy season, Khal was wasted and the respondent/plaintiff did not lift the Khal from the appellants/defendants. The respondent/plaintiff also supplied two trucks of mustered to the appellants/defendants which was inferior, therefore, the appellants suffered a loss. The contents of the written statement further reveal that the appellant/defendant paid Rs, 2,30,000/- to the respondent/plaintiff. Out of the pleadings of the parties, learned trial Court framed the following issues:--
1. Whether promissory note and receipt is under stamped and stamps affixed on the promissory note have not been crossed/cancelled, if so its effect? OPD.
2. Whether defendant has received a sum' of Rs, 5,00,000/- from the plaintiff as loan and got executed promissory note dated 3.5.1999 alongwith agreement dated 3.5.1999 of his own free will?
OPD.
3. Whether plaintiff is entitled for the recovery of Rs, 5,00,000/- as alleged in plaint? OPD.
4. Relief.
The learned trial Court decreed the suit vide judgment and decree dated-20.12.2002, Hence this appeal. Learned counsel of the appellants submits that the appellants had taken specific preliminary objection that promissory note is insufficiently stamped and the stamps affixed on the promissory note are not cross-cancelled, therefore, promissory note is not admissible in evidence. The learned trial Court erred in law to consider the document in question admissible in evidence in violation provisions of Sections 12 and 35 of Stamp Act, 1899 and the law laid down by the Superior Courts. In support of his contentions he relied upon the following judgments:--
1. Sohanlal Nihal Chand vs. Ranghu Nath Singh AIR 1934 Lah. 606.
2. Firm Sri Chand Sheo Parshad vs. Lajja Ram AIR 1939 Lah. 31.
3. K.M. Muneer vs. Mirza Rasheed Ahmad PLD 1963 Karachi 905. 4.. K.M. Muneer vs. Mirza Rasheed Ahmad PLD 1964 Karachi 172.
5. Sheikhupura Central Cooperative Bank Ltd. vs. Ch. Tawaqal Ullah and another PLD 1977 Lah. 763.
United Bank Limited vs. Mian Abdul Khaliq PLD 1988 Lah. 225:
7. Mirza Arif Baig vs. Mubarak Ali PLD 1992 Lah. 366.
8. Malik Muhammad Akram vs. Khuda Bakhsh 2000 CLC 795.
He further urges that wording of the pronote and receipt reveal that it is a garz-i-hasna', therefore, suit filed by the respondent/plaintiff against the appellants is not maintainable. In support of his contentions he relied upon Habib Bank Limited vs. M/s Qayyum Spinning Ltd. (2001 MLD 1351). He further urges that Respondent No, 1/plaintiff failed to prove execution of the alleged promissory note and the payment of money, but the learned trial Court by misreading of evidence on record has given finding otherwise which is not in accordance with evidence on record coupled with the fact that the learned trial Court erred in law not to note the material contradictions in the evidence produced by the respondent/plaintiff before the trial. Court. He further urges that the learned trial Court erred in law to decide Issues Nos, 2 and 3 jointly which is in violation of mandatory provisions of Civil Procedure Code. He further urges that respondent has failed to prove payment of Rs, 5,00,000/- and execution of alleged promissory note and agreement dated 3.5.1999 as is evident from the evidence produced by the respondent/plaintiff before the trial Court, but the learned trial Court has given finding against the appellants/defendants by Misreading and non-reading of the record. He summed up his arguments that the trial Court erred in law to decide Issue No, 1 against the appellants without any reasons. as is evident from the operative part of the impugned judgment in para-8.
Learned counsel of the Respondent No, 1/plaintiff submits that pronote as well as agreement/receipt was exhibited before the learned trial Court without any objection raised by the appellants/defendants, therefore, the learned trial Court was justified to decree the suit of the respondent/plaintiff against the appellants. The appellants are estopped to raise objection at appellate stage as the documents in question were exhibited before the trial Court without any objection raised by the appellants/defendants as is evident from the statement of the parties on record of the trial Court. He further urges that the appellants are estopped to raise objection qua insufficient stamps on the documents in question and non-registration of the documents in question in view of the conduct of the appellants/defendants as the defendants/appellants did not raise objection qua the maintainability of the documents in question before the trial Court, therefore, judgment of the trial Court is in accordance with law laid down by the .Superior Courts. In support of his contentions he relied, upon the following judgments:-- 1.Sirbuland vs. Allah Loke 1996 SCMR 575.
2.Fareed Akhtar Hadi vs. Muhammad Latif Ghazi, 1993 CLC 2015.
3.Manzoor Ahmad Khan's case 1975 SCMR 167.
4.Haji Ghulam Mustafa vs. Allah Bakhsh PLD 1963 Karachi 906.
5.Kasim Kamber and others vs. Chander Ban Wadhual and another PLD 1962 Karachi 253.
We have considered the contentions of learned counsel of the parties and perused the record ourselves.
It is better and appropriate to reproduce Sections 12, 35 and 36 of Stamp Act, 1899 to resolve the controversy between the parties:--
12. Cancellation of adhesive stamps. (1)(a) Whoever affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any person shall, when affixing such stamp, cancel the stamp so that it cannot be used again; and
(b) whoever executed any instrument on any paper bearing adhesive stamp shall, at the time of execution, unless such stamp has been already cancelled in manner aforesaid, cancel the same so that it cannot be used again.
(2)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.
(3)The person required by sub-section (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.
35. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public office, unless such instrument is duty stamped: Provided that:-- (a)any such instrument not being an instrument chargeable with a duty only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five "rupees, or, when ten times the amount .of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times of such duty or portion; (b)where any person from whom .a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c)where a contract or agreement of any kinds is effected by correspondence consisting of two or more letters and any one of the letters bear the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d)nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court other than a proceeding under Chapter XII of Chapter XXXVI of the Code of Criminal Procedure, 1898;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or wherein it bears the certificate of the Collector as provided by Section 32 or any. other provision of this Act.
36. Admission of instrument where not to be question. 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.
Mere reading of the aforesaid provisions of law reveals that objection about stamp insufficiently affixed on document cannot be taken when a document is already admitted. Section 35, no doubt, prohibits a Court from admitting in evidence an instrument which in its view is not duly stamped and also prohibits the Court from acting on such document, yet if the Court wrongly admits such document, appellate Court is prevented by Section 36 of the Act for calling into question the admission in evidence of such an instrument, though it may have been wrongly admitted, meaning thereby the appellate Court is bound to hold that admission was proper. The aforesaid section was interpreted and laid down the aforesaid principle in Amin Jute Baling Company Ltd. vs. Aminpur Union Cooperative Multi Purpose Society Ltd. (PLD 1961 Dacca 102). The relevant observation is as follows:-- "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 the case of Abdul Hashim PLD 1961 Dacca 596 has also the same view. It is settled principle of law that making of payment in connection with promissory note does not require to be proved and it is sufficient if the execution of the promissory note is either proved or admitted. In arriving to this conclusion we are fortified by PLD 2002 Peshawar titled Sherbaz Khan vs. Mir Adam. Khan. It is also settled principle of law that the document in question could not be admitted in evidence in view of Sections 33 and 35 of the Stamp Act as the law laid down in the aforesaid judgments relied upon by learned counsel of the appellants. .However, in view of Section 36 of Stamp Act nothing can be done at appellate stage. All such stamps once under stamp or unstamped admitted in evidence preclude any controversy on the point except to the extent permitted by Section 61 of the Stamp Act, 1899 as the laid down in Muhammad Luqman's case. NLR 1995 Civil Law Judgments 24. The same principle has been laid down by Mr. Justice Ihsan ul Haq Chaudhry (as his Lordship then was) in M/s Rasheed Ullah vs.' Punjab Province and others NLR, 1995 Civil Law Judgments 689 by considering all the case law at page 695. The same view was laid down in Fareed Akhtar's case (PLD 1993 Karachi 375) after considering all the case law on the subject and laid down the following principle:-- "An instrument once having been admitted in evidence is immune from challenge on the ground that it was under stamped or.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."
It is also settled principle of law that legislature in its wisdom put Section 36 after Sections 12, 33 and 35, therefore, latter will prevail over the earlier provisions of law. It has been held by the Hon'ble Supreme Court in Union Insurance Company of Pakistan Ltd. vs. Hafiz Muhammad Siddiq (PLD 1978 SC 279) that object of Section 35 of the Act is not to invalidate the instruments not properly stamped but to protect the public revenues. The respondent/plaintiff has proved on record the execution of the documents in question by producing two attesting witnesses and subscriber. The appellants also admitted before the trial Court in the contents of the application for leave to appear and defend in para-4 that the appellants are ready to settle the dispute with the respondent/plaintiff in case the appellants would be liable to pay some amount of the respondent/plaintiff then the appellants would ready to pay the said amount in easy installments.
It is pertinent to mention here that the appellants have taken preliminary objection with regard to documents in question that documents in question were not properly stamped and stamps were not crossed, but the appellants did not ask any question with regard to the objection taken by the appellants in written statement from the witnesses of the respondent/plaintiff. The appellants did not utter a single word in their statement before the trial Court with regard to the preliminary objection raised by the appellants in the written statement, therefore, the trial Court was justified to decide Issue No, 1 against the appellants. The judgments relied upon by learned counsel of the appellants are distinguished on fact on law as the effect of Section 36 of Stamp Act, 1899 was not noted and decided in the judgments relied upon by learned counsel of the appellants, therefore, we do not find any infirmity or illegality in the impugned judgment of the trial Court. The appeal is dismissed, with no order as to costs.