1993 PLP 2015 (CLC)

As against this the evidence of the plaintiff is that because of his friendly relations with the said Burhanuddin Siddiqi and the fact that the daughter of the defendant worked in the school he had agreed to become a partner with them and advanced the amount to them on two occasions and thus a promissory note of the total amount was got executed. In these circumstances, the presumption has also to be in favour of the plaintiff under section 118 of the Negotiable Instruments Act. The provisions of clauses (a) and (b) of section 118 of the Negotiable Instruments Act read as under: "

118. Presumption as to negotiable instrument of consideration. Until the contrary is proved, the following presumptions shall be made:‑‑ (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted. endorsed, negotiated or transferred for consideration; (b) as to date‑‑that every negotiable instrument bearing a date was made or drawn on such date; (c) .................................................. (d) ............................................. Even in cross‑examination the defendant admits that Bank Guarantee of s.1,00,000 was also arranged by the plaintiff on his behalf. All these facts show that the defendant had not only executed the promissory note but also received consideration. It may further be observed that the defendant admits having purchased the office in Arkay Square, whereas in para. 5 of his affidavit‑in -evidence he states that he had migrated from East Pakistan and having suffered there he had no ready cash to invest. The fall of East Pakistan had taken place in November, 1971, whereas the defendant in his cross- examination has admitted that he came to Pakistan in 1976‑

77. The evidence of the defendant is full of inconsistencies. In the written statement he denies the execution of the promissory note, whereas in his affidavit‑in‑evidence he admits having executed the same, and so also in cross‑examination. As regards the receipt of consideration the defendant denies the same but admits arrangement of Bank Guarantee through the plaintiff. The documents discussed above have fully established that the amounts was paid to the defendant. In these circumstances, I answer Issues Nos.1 and 3 in affirmative and Issues No.2 in negative. ISSUE N0.4: As regards this issue, the discussion on Issues Nos.1 to 3 shows that the promissory note having been executed by the defendant and consideration having passed the defendant is liable to pay the amount of the promissory note to the plaintiff and thus the cause of action has accrued to the plaintiff for fling of this suit when the defendant did not honour the promissory note. It may be observed, that a summary suit, after leave to defend is granted and written statement is filed, is to proceed like an ordinary suit as laid down in Order XXXVII, rule 7, C.P.C. In the present case the promissory note has been produced and duly proved as having been admitted., Thus this issue is to be' answered in favour of the plaintiff. However, the defendant has raised certain legal pleas with regard to admissibility of the promissory note on the grounds that it contains interpolation in date of signing the promissory note and also being not properly stamped or the stamps affixed to the promissory note not having been properly cancelled. First I will take up the point of admissibility of promissory note. II may be observed that the affidavit‑in‑evidence of the plaintiff was filed on 19‑2‑1989 which is Exh.

7. Issues were settled on 30‑10‑1988 and all the documents were filed in Court during the time allowed by the Court after settlement of issues. These documents also contain a copy of promissory note and the original promissory note Exh. P/19 was also produced in cross- examination recorded on 24‑8‑1989. The defendant thereafter moved applications in the year 1990 praying for impounding of the promissory note and challenging its admissibility. These applications were disposed of by orders passed on 23‑4‑1990 (C.MA. No.209/90). This was an elaborate order passed by my learned brother Mukhtar Ahmed Junejo, J. The learned Judge has discussed the case‑law in this order and held that eight of the required stamps were not cancelled property and, therefore, the promissory note was under stamped. However, in the same order it has been held that since the promissory note has been produced in evidence, admitted and exhibited, the same cannot be taken out of consideration as required under section 36 of the Stamp Act. However, it was observed that the value of the promissory note will be considered at the time of evidence. The defendant has placed reliance on 34, the following cases; (i) Sohan Lai Nihal Chand v. Raghu Nath Singh and others AIR 1934 Lahore 606., (ii) Pulhraj Surana v. Jawerchand and others AIR 1957 Rajasthan 47. (iii) Gordhassingh and others v. Suwalal and Kalyanbux and others AIR 1959 Rajasthan

156. The above‑cited case‑law have been considered by the learned Judge while passing the order dated 23‑4‑1990. Against this order a High Court Appeal was preferred by the defendant being High Court Appeal No.84 of 1990, which was dismissed on 17‑10‑1990 by the learned Division Bench of this Court. The defendant then preferred Petition for Leave to Appeal being No.573‑K of 1990 which was also dismissed by the Hon'ble Supreme Court vide orders passed on 24‑4‑1991 Now the point for consideration is as to whether a suit based on a document which is not properly stamped can be maintained or not. Section 35 of the Stamp Act provides for certain documents, not duly stamped to be‑inadmissible in evidence. There is a proviso to this section also. However, section 36 of the Stamp Act provides that the document once admitted in evidence although not admissible by virtue of section 35 of the Act could not be challenged at any subsequent stage of the same suit or proceedings on the ground that the same had not been duly stamped. Section 36 of the Stamp Act reads as under: "

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:" In the case of Ch. Muhammad Saleem v. Muhammad Akram (PLD 1971 SC 561) it was held by their Lordships as under:‑‑ "This view is on principle too sound for once a document has been admitted in evidence without objection its admissibility cannot subsequently be challenged, on any technical ground or any ground which does not affect the parties. The collection of revenue is no concern of the parties. That purpose is adequately served by section

61. There is no reason, therefore, as to why the bar created by section 36 should not be given effect to. In the present case there can be no manner of doubt that the document was admitted, marked as an exhibit without any objection and when it was put to a number of witnesses in examination and cross‑examination. The objection on the ground of want of stamp cannot, therefore, be raised at this stage." Also in the case of Muhammad Akbar Khan v. Saeed Khan (PLD 1978 SC (A J & K) 6) it has been held by their Lordships that the document once marked as exhibit and also shown to witness for purpose of identification became clear admission of instrument in evidence. In the same case it was further held that the question of dismissal of suit on grounds of instrument being not sufficiently stamped or penalty not being paid does not arise by virtue of provisions of section 36 of the Stamp Act. In yet another case of Samiullah v. Muhammed Ahmad (PLD 1977 Karachi 49) a Division Bench of this Court had held as under: "I am, however, of the view and that appears to be the view taken by Supreme Court of Pakistan, that section 36 is categorical in its terms and no limitation can be read into it more particularly as the limitation intended by the legislature has been incorporated therein. As was observed by the Supreme Court stamping is a matter of revenue with which the parties are: unconcerned and if the legislature in categorical terms states that once a document is admitted it cannot be questioned later on at any stage of the trial such categorical language must be given effect to. It is possible to take the view that if the purport of section 35 was to impose a duty such a purpose must be given effect to and not allowed to be set at naught by section 36 but its effect is only limited to safeguarding revenue due to State, it is a matter of no concern to the parties." In the case of Sikandar Ali v. Mst. Alhamra Begum (PLD 1969 Dacca 214) it was held in case of a receipt, wherein the,stamps were not cancelled and receipt was admitted in evidence by trial Court, that such admission cannot be called in question later in view of section 36 of the Stamp Act. In another case of Amin Jute Baling Co. v. Aminpur Union Cooperative Multipurpose Society Ltd. (PLD 1961 Dacca 102) it was held by a Division Bench of the Dacca High Court as under: "Now, section 35 of the Stamp Act prohibitsyourt 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:' 4,, Similarly, in case of Abul Hashim v. Serajul ~aque and others (PLD 1961 Dacca 596) a Division Bench of Dacca High Court had also held the same view. In view of the above case‑law, I am of the view that an instrument once having been admitted in evidence is immune from challenge on the round that it was under‑stamped or the 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. Accordingly, the contention raised by the defendant is rejected.. . The upshot of the above discussion is that the suit of the plaintiff is decreed for Rs.2,20,400 with mark‑up at 6% as provided in section 80 of the Negotiable Instruments Act as promissory note does not show any rate of interest. The mark‑up will be payable from the date of the institution of the suit till realization of the amount. Above are the reasons for the short order announced in Court on 19th May,1993.