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First Appeal No.10 of 1978, decided on 22nd December, 1985.

‑‑‑S. 12(3)‑‑Adhesive stamps affixed on promissory note were correctly in use at relevant time‑‑Factum of using red colour of stamps and green colour of stamps was, therefore, of no consequence.

.S. 12(3) . Adhesive stamps, cancellation of..Drawing a line across a stamp is enough for cancellation of stamp, which cannot thereafter be used Question of forgery and cheating has to be kept out of consideration whenever consideration question of cancellation of stamps.

This appeal is directed against the judgment and decree passed in Civil Suit No.176174, dated 31‑10‑1977 by VIIIth Additional District, Judge, Karachi.

2. The appellant had filed a suit for recovery of Rs.3,130 under Order XXXVII, C.P.C. which was mainly based upon a promissory note executed by the respondent. It appears that notice of the suit was issued to the Respondent but he was not served ordinarily and i consequently the substituted service was ordered upon him by publication. The respondent, however, did not appear before the Additional District Judge.

3. The lower Court, therefore, proceeded ex parte and asked the appellant to file proper proof.

4.The plaint was, however, rejected on the ground that the, pro‑note in question was not properly stamped and, therefore, it was not admissible in evidence. The learned Judge had taken the view that some of the adhesive stamps put upon the promissory note were of green colour and some of them were of red colour and, therefore, they might have been affixed at a different time. He was further of the view that only four stamps of two annas each were properly cancelled as they bore the signature but 25 adhesive stamps of 40 paras each were not properly cancelled as they merely bore a line across their faces.

5. Mr. Inamul Haq, learned counsel for the appellant has submitted that the factum of using the red colour of stamps and green colour of stamps is of no consequence whatsoever as long as the adhesive stamps were correctly in use at the relevant time. The submission appears to be correct. It depends upon the circumstances of each case and the availability of the relevant stamps with the person who is using them. It has not been shown to me that either the red colour of stamps of two annas or the green colour of stamps of 40 paisas each were not in use at the relevant time, therefore, the objection about colour raised by the learned A.D.J. himself was without any consequence.

6. The other ground of rejecting the stamps on the promissory note was that the green adhesive stamps were not properly cancelled. I have seen the original promissory note and I find that every one of these 25 adhesive stamps bears a line across its face and, therefore, these stamps were quite effectually cancelled and it was not possible for anyone to use the same.

7. Mr. Ahmad Saeed Qureshi, learned counsel for the respondent had submitted that since all these 25 stamps merely bore a line across their face, therefore, they were capable of being used elsewhere, if we could take all these stamps from the present promissory note and affixed them on some other paper. This submission takes into view a dishonest use of the stamps. However, such dishonest use, even if possible, cannot make stamps as uncancelled, when they have been in fact, actually 'cancelled. The proper consideration for the effectual cancellation of the stamps is whether an ordinary reasonable person will treat them as cancelled or not and it appears to me that an ordinary person would treat them as cancelled stamps because they clearly bore a line across them.

8. 1 do not think any ruling or citation is required in support of what I have observed above and I am quite clear in my mind that the provision of section 12(3) of the Stamps Act, 1899 allows a person cancelling the stamp to make the cancellation by writing on or across the stamp his name or initials or the name of initials of the firm with the true date of his so writing, or in any other effectual manner. The words "effectual manner" are quite significant and they require that the cancellation of the stamps should be effected and, therefore, drawing a line across a stamp is enough for cancellation of the stamps, which cannot, thereafter be used again by any ordinary person. The question of forgery and cheating has to be kept out of consideration whenever considering the question of cancellation of stamps.

9. The result is that this appeal has to be allowed and, therefore, I set aside the judgment and decree of the trial Court and remand the case back for decision of the same in accordance with law after giving both the parties opportunity to do the needful.

10. By consent of the counsels appearing before me, it is ordered that the ex parte order against the respondent is set aside and the respondent is allowed the opportunity to apply for leave to defend and will make such application before the District Judge (South) Karachi on 6th January, 1986. The R & P is to be sent back to D.S. (South) Karachi and the parties are directed to appear before him on 6‑1‑1986. The District Judge (South) will accept the application for leave to defend from the respondent and then assign the case to any other A.D.J. for disposal in accordance with law.

M.A.K./U‑11/K Case remanded.

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