1987 PLP 2524 (MLD)

Nemo for Respondent No.1. Miss Gulshan Ara for the Remaining Respondents. Date of hearing: 2nd April, 1984. This Regular Second Appeal was admitted to regular hearing on 9-61966 to examine, interalia, the contention on the authority of Chulam Farid v. The Board of Revenue, West Pakistan, Lahore, PLD 1960 (WP) Lahore 211, that the learned Civil l edge had no jurisdiction to impose penalty under the Stamp Act in respect of a document purporting to be a deed of mortgage.

2. The facts giving rise to this appeal, in brief, are that o ' 21-10-1963 the respondent Fazal Din (since deceased and represented by the legal heirs) filed a suit against the appellant Sardar Khan for a declaration to the effect that the respondent's claim of being a mortgagee of 5 Kanals and 1 marla land situated in village Malhaya Kalan, Tehsil Kharian, District Gujrat on the basis of mutaton No.1029 sanctioned on 22-9-1963, was untenable inasmuch as the mutation was ineffective and not binding on him for the reason that it had been obtained collusively and without consideration. He also prayed for a permanent injunction restraining the defendant from disturbing his possession of the land in suit. In his defence, the defendant pleaded that the land had been mortgaged with him by the plaintiff for a sum Rs.1,500 on the basis of an agreement deed executed by him. He claimed that possession of the land was promised to be delivered to him but then not in fact delivered. Learned trial Judge set down for the following two issues:- (1) Was the suit land mortgaged in favour of the defendant, when and for what consideration? OPD. (2) Did the plaintiff receive the mortgage amount, if so, what is its effect? OPD(onus objected to).

3. During the trial of the suit the alleged mortgage deed was up before the learned trial Judge who, being of view that same was insufficiently stamped, impounded it and required Sardar to deposit the deficiency in stamp and penalty by 10-12-1964. The required sum was not paid by the due date but the case was adjourned to 2-2-1965 at the request of his counsel, on the condition of Rs.10 as costs of adjournment. It appears that in the document in question was sent over to the Collector for of recovery. On 2-5-1965, again neither the required amount paid nor the costs and a further adjournment was requested was granted on the condition of payment of Rs.100 and the was put off to 12-3-1965. On this date the defendant himself was present in the Court and expressed his inability to pay the amount as well as the costs. Accordingly the learned trial Judge close. his case under Order XVII, Rule 3 of the CPC. Then, on 17-3-65 after refusing to allow oral evidence desired to be produced by Sardar Khan, he decreed the suit against him. An appeal filed thereagainst by Sardar Khan was also dismissed by the learned Additional District Judge, Gujrat, on 31-7-1965.

4. In this appeal, learned counsel for the appellant has contended that order of learned trial Judge for payment of penalty was with jurisdiction and he was justified in refusing to comply with it and, as such, penal action could not follow upon his refusal. Be that as it may, this question is only of academic interest now when he has already been sent to the learned Collector for being dealt with according to and the proposition now being canvassed by learned counsel inconsequential in view of the fact that adjournment in the suit had been asked for and granted twice conditionally, on payment of costs which were not paid. Learned counsel does not dispute this fact and, as such, action under Order XVII, Rule 3 of the CPC was eminently justified, validity of this Burden of proof of both the issues was on the defendant which remained un-discharged for want of evidence.

5. In the circumstances there is no merit in this appeal which is accordingly dismissed with costs. M.Y.H./3291/L Appeal dismissed.