2017 PLP 416 (YLR)

QALANDAR ALI KHAN, J.

This civil appeal by Imran Orakzai, appellant, is directed against the judgment and decree of the learned Additional District Judge-II, Abbottabad, dated 26.02.2011, whereby, his suit against respondent/defendant, Sami-ul-Haq, for recovery of Rs.1000000/- on the basis of promissory note dated 24.05.2008 under Order XXXVII of the Code of Civil Procedure, 1908, was dismissed.

2. The appellant/plaintiff instituted the aforesaid suit against the respondent/ defendant for recovery of Rs.1000000/- on the basis of promissory note dated 24.05.2008, while claiming that the respondent/defendant had promised to repay the borrowed amount within four months by 24.09.2008, but he never kept the promise and delayed repayment till June 2009 and again promised to make payment of the entire outstanding amount of Rs.1000000/- in the month of July, 2009. However, the promise was never fulfilled; hence the suit.

3. In his application for leave to defend, the respondent/defendant denied to have either borrowed the amount from the appellant/plaintiff or executed a pro note in his favour, but claimed to have owed some amount to father of the appellant/plaintiff, therefore, he paid an amount of Rs. 110000/- through cheque dated 15.09.2008 of the Bank of Khyber. He alleged that the pro note was forged and fictitious, insufficiently stamped and that he had no business dealing with the appellant/plaintiff. In his written statement, after permission of leave to defend was granted to him, the respondent/defendant reiterated his objections to the suit of the appellant/plaintiff.

4. The pleadings of the parties were reduced to the following issues:--

1. Whether plaintiff has got cause of action? OPP.

2. Whether plaintiff is estopped to sue by his own conduct? OPP.

3. Whether suit is maintainable in its present form? OPP.

4. Whether suit is bad for mis-joinder of unnecessary and non-joinder of necessary parties? OPP.

5. Whether the suit is properly valued for the purpose of Court fee?

6. Whether pro note has been properly assessed.

7. Whether this Court has got the jurisdiction to entertain the present suit?

8. Whether the defendant is entitled to payment of compensatory costs in case of rejection of suit? OPD.

9. Whether defendant paid outstanding amount to the father of plaintiff vide Cheque No.6598452 dated 15.09.2008, Bank of Khyber Abbottabad?

10. Whether plaintiff is entitled to the decree as prayed for? OPP.

11. Relief?

5. After recording evidence of both the parties, and hearing arguments of their learned counsel, the learned trial Court/ADJ-II, Abbottabad, rendered judgment dated 26.02.2011, thereby dismissing suit of the appellant/plaintiff; which is impugned herein.

6. Arguments of learned counsel for the parties heard, and record perused.

7. In his findings on four issues Nos. 1, 3, 6 and 10, the learned trial Court/ADJ-II, held that the promissory note (EXPW4/1) was having stamp duty of Rs. 10/- while as per amendment in Article 49 of the Stamp Act 1899, vide NWFP Finance Act No.1 of 1996, the requisite Stamp duty was Rs.125/-. According to the learned Court, the receipt was also, likewise, not properly stamped in terms of Article 53 of the Stamp Act, according to which, if the amount exceeded Rs.10000/-, the receipt of such amount was required to be stamped with Rs.7/- whereas on the receipt (EXPW4/1) a stamp of Rs.4/- was affixed, therefore, the promissory note (EXPW4/1) was inadmissible in evidence for want of proper stamp duty, as defect of deficiency of stamp was not curable.

8. The learned trial Court, ostensibly, invoked the provision of Section 35 of the Stamp Act, 1899, while holding the promissory note inadmissible in evidence for want of affixation of proper stamp duty; but the learned trial Court lost sight of the fact that the promissory note was already admitted in evidence during the statement of appellant/plaintiff (PW.4) as EXPW4/1 without any objection on behalf of the respondent/defendant. Therefore, the admission of promissory note could not be called in question at any stage of the same suit or proceeding on the ground that the instrument had not been duly stamped, under Section 36 of the Stamp Act, 1899. If authorities were needed, one could readily refer to judgments reported as 1996 SCMR 575 (f), 2000 CLC 296 (Peshawar) (a) (b), 2003 CLD 224 (Lahore) (b) and PLD 2004 Lah. 95.

9. Apart from the fact that requirement as to attestation prescribed by Article 17(2)(a) of the Qanun-e-Shahadat Order (P.O.10 of 1984) was not applicable to a promissory note (NLR 1994 AC 661), the appellant/plaintiff was able to produce beside him one of the marginal witness namely Majid Ali (PW.3) and scribe of the document namely Ghulam Daud (PW.1), which is to be considered as a statement of a marginal witness in the circumstances. (2000 YLR 2789 (Lahore) (b).

10. The learned counsel for the respondent urged that the scribe (PW 1), Notary Public Sardar Maqbool-ur-Rehman (PW.2) and marginal witness Majid Ali (PW.3) admitted this fact in their statements before the Court that the amount was not paid by the appellant/plaintiff to the respondent/defendant in their presence; but this admission on the part of the aforementioned PWs would not dislodge presumption under Section 118 of Negotiable Instruments Act, 1881 relating to execution of the Negotiable Instrument for consideration in favour of the plaintiff. (2000 CLC 296) (Peshawar) (c). Even a consideration paid earlier in time was a good consideration as it was not necessary that the consideration for the promissory note should be paid on the same date on which the pronote is executed. (1990 CLC 1018) (Karachi).

11. One is really at a loss to understand that if the respondent/defendant did not owe any amount to the appellant/ plaintiff, then what prompted him to issue a cheque for payment of Rs.1000000/- in the name of the appellant/ plaintiff, which was dishonoured on presentation to Bank Alfalah Limited, Abbottabad, on the ground of insufficient balance, and further why the respondent/defendant issued a cheque for Rs. 110000/- which was encashed from the Bank of Khyber by the appellant/plaintiff.

12. There was, as such, overwhelming evidence meeting requirements of the law in support of the case of the appellant/plaintiff, making him entitled to the decree, as prayed for, which was denied to him by the learned trial Court on considerations other than available for dismissal of a suit for recovery of the outstanding amount on the basis of pronote under Order XXXVII, C.P.C.

13. Therefore, the impugned judgment and decree dated 26.02.2011 of the learned ADJ-II, Abbottabad, is not sustainable. The appeal is, accordingly, accepted; and the impugned judgment and decree dated 26.02.2011 is set aside. Consequently, the decree, as prayed for, for the recovery of Rs. 1000000/-, on the basis of pronote dated 24.05.2008 is granted in favour of the appellant/plaintiff against the respondent/ defendant, but after deduction of Rs.110000/-, admittedly, received by the appellant/plaintiff from the respondent/ defendant through a cheque of Bank of Khyber. ZC/242/P Appeal allowed.