1980 PLP 1136 (CLC)

(a) any such instrument not being an instrument chargeable with a duty of one anna (or half an anna) only, or a bill of exchange or promis sory note, shall, subject to all just exceptions, be admitted in evidence on payment of 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 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 kind is effected by correspon dence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped ; (d) nothing herein contained shall prevent the admission of any instru ment in evidence in any proceeding in a criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 ; (e) nothing herein contained shall prevent the admission of any instru ment in any Court when such instrument has been executed by or on behalf of (the Government) or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act. The reading of this section quoted above shows that the intention of the Legislature is not to make the instrument invalid for all intents and purposes simply for the reason that it is riot paid with duty or is under stamped and on that account cannot be admitted in evidence at all because provisos to this section indicate that in certain cases exceptions can be made and instruments such as bill of exchange or promissory note can be admitted in evidence subject to all such exceptions on payment of duty and penalty as specified in proviso (a). Unstamped receipt can also be admitted in evidence on payment of penalty. Criminal Courts have been empowered to admit in evidence such instruments and then documents executed on behalf of Government are allowed to be admitted in evidence. Section 36 of the said Act further provides that where an instrument has been admitted in evidence such admission shall not, except as provided in section tit, be called in question at any stage of the same suit or proceed ing on the ground that the instrument has not been duly stamped. Sec tion 61 relates to the powers of Civil, Revenue or Criminal Courts admitting instruments in evidence as duly stamped or on payment of duty and then sending such declaration to the Collector. Further section 33 clearly provides as under-- (1) Every person having by law or consent of parties authority to receive evidence and every person in charge of a public office, except an Officer of Police, before whom any instrument, chargeable in his opinion with duty, is produced or comes M the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in (Pakistan) when such instrument was executed or first executed : Provided that

. (a) nothing herein contained shall be deemed to require any Magistrate or Judge. of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XI) or Chapter XXXVI of the Code of Criminal Procedure, 1898 ; (b) in the case of Judge of High Court, the duty of Examining and enpounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt,

(a) (the Provincial Government) may determine what offices shall be deemed to be public offices ; and (b) (the Provincial Government ) may determine who shall be deemed to be persons in charge of public offices. As regards how the instruments are to be stamped powers of adjudication are given to the Collector as under section 31 and he is required to give certificate of duty to be paid as provided in section 32, in this view of the matter it cannot be said that requirement of section 35 of the said Act can be stretched to the extent to say that particular instrument is not stamped as such and is rendered absolutely invalid for all intents and purposes just because it is not stamped or under-stamped, such defect in the instrument is curable under the said Act because the intention behind the said Act is to protect public revenues only and that can be achieved when the duty is paid or deficit is trade up as provided under the said Act. In this context reliance is placed on case of Union Insurance Company v. Hafiz Mohammad Siddik (P LD 1979 S C 279). Relevant portion from the judgment of the Supreme Court at page 284 is reproduced as under :

I would now examine section 35 in some detail. It prescribes that no instrument, which is not properly stamped, shall be admitted in evidence for any purpose

or shall be acted upon

"Now merely because an instrument cannot be admitted in evidence for any purpose as because it cannot be acted upon by the persons specified in the section, does not mean that such an instrument is invalid, and it is not irrelevant to observe here that the words which I have quoted have to be construed strictly, because they are to be found in a provision of a penal nature Therefore., it would against all cannons of construction to enlarge the meaning of these words, so as to render invalid instruments which fall within the mischief of the section. After all instruments, which are not duly stamped, are executed every day, but I venture to think that most persons, who incur obligations under such instruments, honour their liabilities under such instruments, regardless of the provisions of section

35. In any event, this section is attracted only when an instrument is produced before the persons specified in the section. But, for example, an instrument would be produced in evidence only when there is a dispute about it, therefore, if the intention of the Legislature had been to render invalid all instru ments not properly stamped, it would have made express provision in this respect, and it would also have provided sonic machinery for enforcing its mandate in the deceases in which the parties did not have occasion to produce unstamped instruments before the persons specified in tile section. Additionally, I find nothing in the section which would support the appellant's plea that an instrument becomes invalid, if it falls within the mischief of the section. After all, if an instrument is invalid, it must be invalid for all purposes, bat proviso (d) to the section expressly saves unstamped instruments in most criminal proceedings, whilst the other proviso to the section enable the parties to overcome the disabilities attached to air instru ment not properly stamped by paying, the requisite duty together with a penalty therefore, this would suggest that the object of the section is to protect public revenue. Again, if an instrument is invalid it should not be admissible in evidence, acid it is so stated in section 35, but the next section prescribes that if an instrument has been admitted in evidence however erroneously, its admissibility cannot be questioned at any stage thereafter and even the appellate Court's powers to entertain an objection about the admissibility of documents have been removed by section by which instead empowers the appellate Court to collect the duty payable one the unstamped instrument together with a penalty. These provisions as well as other provisions in Chapter IV of the said Act, such as sections 33, 38, 19 and 40 can only lead t the conclusion that the object of the Legislature in enacting the laid, Act was to protect public revenues and not to interfere with commercial life by invalidating instruments vital to the smooth flow of trade and commerce. Furthermore in the instant case both parties have relied upon this document which is lease-deed, its execution is admitted by both the parties. Insufficiency of stamp on it is technical objection, even that has been complied with and after the orders of the Court the matter was referred to the Collector as informed by the learned counsel for the respondent and the deficit and penalty were paid and certificate of the Collector was obtained on 13th August, 1977 as per Receipt No. 52 dated 13th August, 197'.' learned counsel for the appellant pointed out that declaration of the A Collector was obtained after the order of ejectment was announced by the learned Rent Controller on 7th August, 1977 but that does not matter for the reason that document in question was already admitted in evidence and the Court was competent to do as stated above. The second objection with regard to the fact that Court was not competent to determine the value of penalty also stands answered as stated above that certificate of the Controller has been obtained and this objection would not affect the admissibility of the document in question in evidence. The last contention was that if this document i.e., lease-deed is taken out of consideration, that tenant would get the benefit of making payment of rent within GO days from the period for which rent was payable and the application for ejectment was premature. This contention was available to the appellant if the lease-deed is excluded from consideration but since it is held that lease-deed was properly admitted in evidence and acted upon this contention fails automatically. For the facts and reasons stated above, it is concluded that default was committed and order of ejectment was proper as such there is no ground for interference with the impugned judgment and the appeal is dismissed with costs. Appellant is directed to hand over vacant possession of the demised premises to the respondent within four months from today and pay rent regularly for this period and if he commits default he would be liable to ejectment forthwith before the expiry of grace time allowed by the Court. Appeal dismissed.