MUHAMMAD HANIF Versus KISSAN DOST (PVT.) LIMITED

MUHAMMAD KHALID ALVI, J .---On 15-5-1989 the respondent filed a suit for recovery of Rs.2,96,187 under Order 37, rule 2, C.P.C. against the defendant/appellant on the basis of a pronote, dated 14-10-1987. According to the averments made in the plaint the appellant on various dates through signed credit vouchers received different pesticides from the respondent/plaintiff total valuing Rs.4, 52,187 up to 14-10-1987 whereafter he executed the disputed pronote in favour of respondent/plaintiff. It is further pleaded that out of the abovesaid amount a sum of Rs.1,56, 000 was paid by the appellant as such, a sum of Rs.2,96,187 was still outstanding against him. The appellant also issued two cheques valuing Rs.50,000 and Rs.1,00,000 in favour of respondent but the same could not be encashed due to paucity of funds.

2. The suit was contested by the appellant by filing his written statement. The execution of pronote was denied. Receipt of medicines was not denied, however, it was pleaded that the medicines supplied were substandard and as such, his crop was damaged. An official of the Agriculture Department had also visited the site on the application made by defendant/ appellant who reported that crop is not healthy. It was further pleaded that a sum of Rs.1,57,000 was paid by the defendant/appellant to the respondent/plaintiff and medicines valuing Rs.70,234 were returned to the respondent/plaintiff. A credit amount of Rs.23,550 was to be given by the respondent to the appellant on the ground that a sum of Rs.2,26,093.50 was abandoned by the plaintiff/respondent in view of mutual settlement.

3. On the divergent pleadings of the parties following issues were framed by the learned trial Court:--

Issues

(1) Whether the document, dated 14-10-1987 is a pronote? OPP

(2) Whether the Court has no jurisdiction? OPD

(3) Whether the memorandum of association was not appended alongwith the plaint, if so, its effect? OPD

(4) Whether the alleged promissory note is a false and fictitious document? OPD

(5) Whether the plaintiff is entitled to receive from the defendant a sum of Rs.2,96,187? OPP

(6) Whether the defendant is entitled to receive from the plaintiff a sum of Rs.24,690? OPD

(7) Relief.

4. The plaintiff produced in evidence P.W.1 Mian Gunj Bukhsh who is plaintiff and one of the Director of respondent-company who supported his case. P.W2 Jaffar Alt is scribe of disputed pronote Exh.P.4, and crop vouchers Exh.P.5 to Exh.P.10. P.W.3 Liaqat Ali and P.W.4 Tufail Muhammad are the marginal witnesses of pronote Exh.P.4. Through documentary evidence two cheques Exh.P.1 and Exh.P.2 valuing Rs.50,000 and Rs.1,00,000 respectively issued by the appellant were also tendered in evidence. Exh.P.3. is the memorandum and articles of the respondent-company. Exh.P.11 (sic) of the appellant which was maintained by the respondent/plaintiff for the supply of medicines. The defendant/ appellant produced D.W.1 Muhammad Nawaz who is Manager of Allied Bank Limited, Qila Hari Chand Branch who deposed about the cheques Exh.P.1 and Exh.P.2 produced by the plaintiff. D.W.2 is Bashir Ahmad who is Agriculture Officer, who inspected the crops of appellant on his application made to EADA. D.W.3 is Khurshid Alam a neighbouring agriculturist who obtained medicines from the appellant which was allegedly supplied to him by respondent/plaintiff and the same were not found by him to be up to the mark. D.W.4 Muhammad Hanif is the appellant/ defendant himself. In documentary evidence Exh.D.A. is the application made by the defendant to EADA which bears the report of D.W.2 Bashir Ahmad Exh.D.2 is the order of learned Civil Judge, dated 7-3-1990 whereby the suit filed by the appellant against the respondent was withdrawn while Exh.D.3 is the plaint of said suit.

5. Learned trial Court after considering above -referred evidence vide its judgment and decree, dated 18-11-1990 decreed the suit in favour of respondent. The same is being assailed through the instant regular first appeal.

6. Learned counsel for the appellant contends that plaintiff/ respondent is a private limited company and the plaint was presented without any authorization, therefore on the basis of such unauthorized plaint no decree could have been passed in favour of respondent. Relies on Khan Iftikhar Hussain Khan of Memdot v. Messrs Ghulam Nabi Corporation Ltd. (PLD 1971 SC 550), National Bank of Pakistan v. Karachi Development Authority (PLD 1999 Karachi 260), Friendship Textile Mills (Pvt.) Ltd. v. Government of Balochistan (1998 CLC 176) and Government of Pakistan v. Premier Sugar Mills arid others (PLD 1991 Lahore 381). It is next submitted that Exh.P.4 the impugned pronote is not a promissory note as defined under section 4 of Negotiable Instruments Act, 1881, therefore, suit filed under Order 37, C.P.C. was not maintainable, as such, the learned Additional District Judge had no jurisdiction in the instant suit. It is next contended that even if the objection of jurisdiction was not raised before the lower Court still the same can be taken in appeal as the same is pure question of law and no evidence is required to resolve this question. Relies on Jam Pallo v. Bashir Ahmad and another (PLD 1993 Lahore 168) and Government of the Punjab v. Prof. Mst. Jamida Malik (1991 MLD 824). With respect to credibility of witnesses it is submitted that P.W.2 is Manager of the plaintiff. P.W.3 Liaqat Ali is the dealer associated with respondent/plaintiff while P.W.4 Tufail Muhammad is also a servant of respondent, therefore, they are all interested witnesses as such, their evidence cannot be relied.

7. It is submitted that the adhesive stamps fixed on the pronote Exh.P.4 have not been cancelled as required under section 12 of the Stamp Act, 1899, therefore, under section 35 of the same Act is an inadmissible document in evidence. Relies on Sheikhupura Central Cooperative Bank Ltd. v. Ch. Tawakkal Ullah and another (PLD 1977 Lahore 763) and K.M. Munir v. Mirza Rashid Ahmad (PLD 1964 (W.P.) Karachi 172).

8. On the other hand learned counsel for the respondent contends that neither any objection was raised lay the appellant in his written statement with respect to the cancellation of stamps on Exh.P.4 nor this objection was raised at the time when Exh.P.4 was admitted in evidence by learned trial Court, therefore, it is concluded that under section 36 of the Stamp Act once the document leas been admitted in evidence the same cannot be called in question in the same proceedings or suit at a later stage. It is next contended that the Stamp Act, 1899 is a Revenue collecting law which cannot be used for closing the doors of justice on hypertechnical objection as is being wised in the instant case because Exh.P.4 contains cancellation of stamps and also two signatures of the appellant on them. It is next submitted that the following phrase used in Exh.P.4 clearly makes it a promissory note within the definition of section 4 of Negotiable Instruments Act;

Relies on Parshotam v. Ishwarbhai (AIR 1971 Gujarat 252) and Govinda v. Haribhau and another (AIR 1933 Nagpur 391) and Benoy Bhusan Saha v. Muhammad Abdullah Samad alias Ladhi Miah (PLD 1956 Dacca 14).

9. We have considered the arguments of learned counsel for the parties.

10. In para. 2 of the plaint it is clearly mentioned that Mian Gunj Bukhsh Bodla and Mian Muhammad Shah Abdul (sic) Bodla are the two Directors of the Company and are competent to file the suit, This fact was not contested by the appellant either in his written statement nor any evidence was led to show that the said two Directors were not authorised to file the instant suit on behalf of their company, therefore, it cannot be said that the suit was incompetently filed. Even otherwise under Order 29, rule 1, C.P.C. the suit by or against a corporation can either be signed and verified by its Secretary or by any Director or other Principal Officer of the Corporation. The respondent-company is a private body corporate registered under Companies Ordinance, 1984 and the suit was instituted signed and verified by its two Directors is a validly instituted suit.

11. The appellant has denied the execution of Exh.P.4, disputed pronote but has admitted his signature on Exh.P.1 and Exh.P.2 and Exh.P.5 to Exh.P.10. We have ourselves compared these admitted signatures with signature of appellant on Exh.P.4 and we have no doubt in our mind that the same are also of the appellant. However, the signing of Exh.P.4 by the appellant is also established from the statements of P.W.2 to P.W.4. Exh.P.W.4 is executed on pronote form used by the respondent-company in the furtherance of their business. It is not an ordinary pronote generally used for such-like purpose, therefore, it is evident that when the required amount of medicines was delivered to the appellant through credit vouchers this pronote was executed to secure the amount mentioned in the same.

12. Exh.P.1 and Exh.P.2 are the two cheques issued by the appellant, although in favour of "self or bearer" are coming from the possession of the respondent for which it is explained by the appellant that the same were issued by him in favour of Tariq Zaman Khan in consideration of lease money, but said Tariq Zaman Khan had paid in cash under receipt and when he was asked to return the cheques he stated that the same have been lost. Neither said Tariq Zaman Khan has been produced by the appellant nor the receipt issued by him in favour of appellant for the payment in cash has been tendered in evidence.

13. The factual controversy is almost admitted between the parties as it is not denied that the appellant had received the medicines, he had made the payments of Rs.1,56,000 to the respondents. The only question which is left for determination as to whether the amount claimed through the instant suit was also paid by the appellant to the respondent or the respondent had waived the recovery of said amount. The respondent had not led any evidence except his own statement that the respondent had waived half of total amount on the ground that the medicines were defective. No member of Punchayat was produced by the appellant where this undertaking was given by respondent.

14. We have examined the original pronote Exh.P.4 all the adhesive stamps totally valuing Rs.10 stands cancelled either making a line on them or through signature of the appellant, therefore, the objection raised by the appellant to that effect also carries no force. Even otherwise under section 36 of the Stamp Act as the pronote was admitted in evidence without objection by the appellant at the relevant time the same cannot be now kept out of consideration. The Stamp Act is a Revenue Collecting Law and the object of cancelling of stamps is only that the same may not be used again on any other document, therefore, the provision of said Act are not intended to deny the vested rights of the parties.

15. For what has been stilted above, we find no merit in the appeal which is accordingly dismissed. No order as to costs.

Q.M.H../M.A.K./M-1305/L Appeal dismissed.