Full Judgment
Arun Kumar Goel, J.
1. This is a plaintiff's appeal filed against the judgment passed by District Judge, Poonch. It appears that after having framed number of issues when the document Iqrarnama, dated 27-12-1978 was being proved, an objection was raised on behalf of the defendant regarding its nature and consequently same being inadmissible in evidence. As per the defendant, the document was in fact a promissory note and not Iqrarnama and because, it was inadequately stamped as such, under Section 35 of Indian Stamp Act, it was not admissible in evidence and could not be taken on record. It was held to be a promissory note, which was inadequately stamped was not taken on record, as it could not be impounded on payment of penalty as well as the requisite stamp.
2. It is in the aforesaid background that the suit of the plaintiff came to be dismissed. In order to further understand the submissions of the learned counsel for the parlies, it is appropriate to notice few material facts relevant for determination of this appeal.
3. A suit was filed by the plaintiff for recoveryof Rs. 30,0007- on the basis of agreement dated 27-12-1978 and acknowledgement dated 29-9-1980. According to plaintiff, both the documents were executed by the defendant. Further case of the plaintiff was that initially a sum of Rs. 20,000/- was obtained as loan by the defendant and Iqrarnama was executed on 27-12-1978 by him, wherein amongst other things, he had agreed to repay this amount on or before 27-12-1979. It also contained several other stipulations which1 are not relevant for the determination of this appeal. Since, the defendant failed to pay the amount, he executed an acknowledgement, wherein he undertook to repay the amount within two years thereof, failing which defendant further undertook to pay the amount initially raised by him with 50% more. It is in these premises and on the failure of the defendant to repay the amount after the expiry of two years from 29th Sept. 1980 that suit came to be filed. In his written statement, that defendant disputed his liability to repay this amount as also having received the same, in addition to the fact that the suit was not maintainable and was liable to be rejected, because he was debtor within the meaning of Distress Debtors Relief Act. In paras 1 and 3 of the written statement while admitting his signatures on both the documents, defendant pleaded that those were obtained by mis-representation as well as under threat on the first occasion and under coercion and threat on the second. In this background, dismissal of suit was prayed for. Hence, this appeal by the plaintiff.
4. On the aforesaid pleadings, parties went on trial on the following issues :-
1. Whether the defendant Sudesh Kumar owed rupees twenty thousand (Rs. 20,000/-) from the plaintiff on 27-12-1978 and the defendant had promised to pay the said loan until 27-12-1979? O. P. P.
2. Whether the defendant has sufficient means to return the borrowed amount to the plaintiff? O. P.P.
3. Whether the defendant refused to pay the money on 27-12-1979 and written on acknowledgment of debt in favour of the plaintiff at Poonch and promised to pay the debt amount within two years in lump sum? O. P. P.
4. Whether the plaintiff served upon the defendant a notice after stipulated time? O. P. P.
5. Whether the defendant runs a shop of Maniari at Surankotc worth rupees 30,000/-? O. P.P.
6. Whether the father of the defendant also runsa shop at Surankote and also an Agriculturist? O. P.'P.
7. Whether the defendant had not obtained Rs. 20,0007- from the plaintiff on 27-12-1978 and his signatures were obtained by misrepresentation or threat and coercion? O. P. D.
8. Whether the defendant has no property and has no capacity to pay rupees 20.0007- to the plaintiff? O. P. D.
9. Whether the defendant is debtor within the meaning of Distress Debtor Relief Act and the suit as such is not maintainable.
10. To what relief plaintiff is entitled to?
5. Plaintiff had commenced his evidence and had stepped into the witness box besides examining other witnesses. When PW Sarfraz Ahmed was being examined through whom, record shows that plaintiff wanted to prove the writing i.e. Iqrarnama dated 27-12-1978, objection was raised regarding the nature of this document. According to defendant, it was a promissory note being inadmissible in evidence for want of proper stamps, thus suit was liable to fail. Without completing the statement of witness Sarfraz Ahmed, Trial Court thought it fit to decide the case then and there and after holding that document a promissory note, has dismissed the suit, as it was inadequately stamped.
6. Trial Court was required to have gone into the matter in detail including the objections regarding the nature of document and the mode adopted by it while deciding the suit during the course of examination of the witness does not appear to be legally correct. May be the ultimate consequences might have been the same, still the fact remains that the manner in which the suit was disposed of is highly deplorable and it can't be upheld.
7. From the records, it appears that while disposing of the suit initially by means of impugned judgment on the objection of the defendant, Trial Court lost sight of the fact that no foundation was laid much less any objection raised by the defendant in his written statement regarding admissibility or otherwise about the nature of the document in question. Only pica raised was that both the documents having been the result of mis-representation, coercion and fraud. Although, no particulars thereof were given in accordance with law in the written statement. Similarly, no defence had been raised regardingthe nature of documents or those is being inadmissible in evidence. In the instant case, the Trial Court appears to have fallen intoerror while disposing of the suit without permitting the parties to have led evidence when they had joined issue as is evident from the records of the case.
8. To be fair to the learned counsel for the defendant, it may be noted that he forcefully urged that since the Trial Court has held the document on the basis of which the suit was filed being apromissory note therefore, it was justified in not passing a decree by deciding all the issues as contemplated under the provisions of O. XIV. C. P. C. This argument is not at all open to the defendant. Firstly for the reasons that there is no plea raised on behalf of the defendant and secondly there was no issue either on the nature of document or regarding its inadmissibility. In this context, it may not be out of place to mention that the suit was based on two documents, namely Iqramama as well as subsequent acknowledgement by defendant. The case was scuttled by the Trial Court midway, when the agreement dated 27th December, 1978 was being proved from PW Sarfraz Ahmed. That being so, no opportunity had been given to the plaintiff to prove the acknowledgement in accordance with law, if he can doso and prove if it was permissible under law. Accordingly, this argument is hereby rejected.
9. For the foregoing reasons, the impugned judgment and decree dated 25-1 -1986 passed by the Trial Court dismissing file No. 57Civil of 1983, titled Abdul Majid v. Sudesh Kumar, is hereby set aside and the case is remitted back to the Trial Court for disposal in accordance with law after affording opportunity to the parties. Trial Court would proceed for expeditious disposal of this suit without being prejudiced by any observation made in this judgment. Trial Court would ensure that this suit is decided by all means on or before 31-12-1998 keeping in view of the fact that the plaint was filed in the Trial Court way back in the year 1983. Parties, through their learned counsel have assured this Court that their clients would render all possible assistance to the Court below for expeditious disposal of the suit. Parties shall appear in the Court of District Judge, Poonch on 23rd Feb. 199S. Registry will ensure that the record of the Trial Court is transferred to the said Court, so as, to reach well before the date fixed. Costs on the parties.