P L D 2013 Lahore 277 (PLP)

ABDUS SATTAR ASGHAR, J.

Liaquat Hussain Zia the petitioner has invoked the constitutional jurisdiction of this Court under Article 199 to impugn the order dated 18-11-2009 passed by the learned Civil Judge, Mianwali whereby his application for rejection of pro note (Exh.P1) has been dismissed. It further assails the order and decree dated 8-4-2010 passed by the learned Additional District Judge, Mianwali whereby petitioner's revision petition filed against the order dated 18-11-2009 was also dismissed.

2. Succinctly the facts leading to this constitutional petition are that Muhammad Din respondent lodged a suit for recovery of Rs.1,27,000 against the petitioner on the basis of a pro note dated 3-6-2003. Petitioner resisted the suit by filing contesting written statement. After framing of issues during examination-in-chief of Muhammad Din (P.W.1) the pro note was admitted in evidence as (Exh.P1). Statement of respondent No.1 and his witnesses namely Muhammad Noor Elahi (P.W.2), Zia Ullah Khan (P.W.3) and Iqbal Hussain Shah (P.W.4) however could not be cross-examined due to non-availability of counsel for the petitioner on the said date and their right to cross-examine was reserved. Learned counsel for the petitioner before cross-examination upon the P.Ws. lodged an application before the learned trial Court to de-exhibit the pro note being not duly stamped as required under section 11 of the Stamp Act 1899. The application was resisted by respondent and the learned trial Court after providing opportunity of hearing to the parties dismissed the application vide order dated 18-11-2009. Petitioner being dissatisfied with the order of learned trial Court dated 18-11-2009 assailed the same through revision petition which was also dismissed vide order decree dated 8-4-2010, hence, this writ petition.

3. It is argued by learned counsel for the petitioner that both the learned courts below while passing the impugned orders have failed to appreciate relevant provisions of law and material facts brought by the petitioner on the record; that the impugned orders are based on wrong premises of law and facts and liable to set aside.

4. It is resisted by learned counsel for the respondent with the contentions that the impugned orders are in accordance with law; that there is no legal infirmity in the impugned orders and the same do not call for interference by this Court in exercise of constitutional jurisdiction, therefore, this writ petition is liable to be dismissed.

5. Arguments heard. Record perused.

6. Perusal of record transpires that in this case admittedly pro note (Exh.P1) is not stamped as required under section 11 of the Stamp Act, 1899. At this stage it may be expedient to reproduce hereunder the relevant provisions of sections 35, 36 and 61 of the Stamp Act, 1899 which reads below:-- "

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 officer, unless such instrument is duly stamped. Provided that- (a) any such instrument not being an instrument chargeable with a duty [not exceeding twenty-five paisa] 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 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 correspondence consisting of two or more letters, and anyone 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 instrument 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 instrument 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.

36. Admission of instrument where not to be questioned.

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.

61. Revision of certain decisions of Courts regarding the sufficiency of stamps.

(1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceedings under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or reference are made by, such first mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration. (2) If such court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced. (3) When any declaration has been recorded under subsection (2), the Court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such court, shall also send him such instrument. (4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under section 42, or in section 43, prosecute any person for any offence against the Stamp-law which the Collector considers him to have committed in respect of such instrument: Provided that- (a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty; (b) except for the purposes of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under section 42."

7. Bare reading of the afore-referred provisions manifests that section 35 enjoins upon the Court not to admit in evidence an instrument which is not duly stamped and also not to act upon such document however if the Court has wrongly admitted such document in evidence the legislature in its wisdom for safe administration of justice has provided remedy to such wrongs by enacting provision of section 36 of the Act ibid which contemplates that where an instrument is admitted in evidence such admission shall not except as provided in section 61 of the Act ibid, be called in question at any stage in the same suit or proceedings on the ground that the instrument has not been duly stamped.

8. At this juncture learned counsel for the respondent in attendance submits that he is ready to affix the stamps upon the pronote (Exh.P1) as required under section 61(2) of the Stamp Act, 1899.

9. It is crystal clear that deficiency in payment of stamps duty if any can be made up in accordance with law. Needless to say that object of above quoted provisions is to collect the dues of State revenue for public use and not to deprive any party of his valuable rights arising out of an instrument. Therefore plea of learned counsel for the petitioner to cancel or de-exhibit the pro note from the respondent's evidence is untenable. Reliance is made upon Abul Hashem v. Serajul Haque and others (PLD 1961 Dacca 596) and Muhammad Ashiq and another v. Niaz Ahmad and another (PLD 2004 Lahore 95).

10. For the above reasons and keeping in view the statement of the learned counsel for the respondents this writ petition is disposed of with a direction to the learned trial Court to get the document/pro note (Exh.P1) impounded by the respondent in terms of section 61(2) of the Stamp Act, 1899 within ten days from receiving the copy of this order.

11. Deputy Registrar (Judicial) of this Court is directed to transmit the copy of this order to the learned trial Court through learned District and Sessions Judge concerned immediately through fax. KMZ/L-2/L Order accordingly.