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Civil Appeal No. 22 of 1960, decided on 22nd May 1953.

‑Execution admitted by debtor but allegation that receipt was obtained under coercion and undue influence and that no consideration was received‑Burden lies on debtor to prove undue influence and non‑receipt of consideration‑Evidence Act (I of 1872), Ss. 102, illus. (b) and 114, illus. (c)‑Contract Act (IX of 1872), S. 16.

Document once admitted in evidence‑Cannot be subsequently challenged on ground of its being insufficiently stamped.

Muhammad Hayat Junejo for Appellant.

A. Shamim for Respondent.

Date of hearing : 22nd May 1963 .

This is a plaintiff's appeal against the decree and judgment of the Assistant Judge, Larkana, dated the 20th of November 1959, and arises out of a suit for recovery of Rs. 6,288. The facts giving rise to the appeal are very‑ simple. The plaintiff‑appellant paid a sum of Rs. 6,288 to respondent Allahbux. Allahbux executed a receipt dated 13th April 1959. On the failure of Allahbux to pay the amount the plaintiff filed the suit for the recovery of Rs. 6,288. The defendant denied having received the consideration mentioned in the receipt. He also pleaded that he executed the receipt under coercion and undue influence.

2. The pleadings between the parties gave rise to the follow ing issues :‑

(1) Whether the defendant took consideration from the plaintiff for the amount of receipt mentioned in para. 2 of the plaint

(2) Is the receipt executed by the defendant without free consent

(3) Is the receipt in suit invalid and cannot be acted upon

The learned Judge found Issues 1 and 3 in favour of the defen dant and Issue No. 2 against him. We propose to dispose of Issues 1 and 2 together. The plaintiff examined one Ahmed Bux who was a marginal witness of the receipt. The defendant examined himself. So far as the documentary evidence is con cerned the plaintiff produced the receipt Exh. 50. The parties did not lead any other evidence. The learned Judge erred in his conclusion as he took Exh. 50 to be a copy of the receipt executed by the defendant. The learned Advocate, Mr. Junejo, has shown the original receipt which is on the record and which has been exhibited as Exh. 50. The fact that the receipt is in original has not been challenged by the learned Advocate for the respondent. Moreover, it would appear from the examination of the defendant Allahbux that he was shown the receipt, Exh. 50. He admitted that the receipt was in his handwriting. In view of the admission by the defendant about the execution of the receipt the presumption would be that he had received A the consideration. It was for the defendant to prove that he had not received the consideration mentioned in the receipt or that he had executed the receipt under undue influence. It would appear from a perusal of the statement of Allabbux that except the bare statement that the plaintiff took the receipt from him under undue influence he has not supported his statement by any other fact such as that he lodged a report with the police or filed a complaint. It is surprising that though the receipt was executed on 13th April 1955, and the suit was filed on 9th April 1958, the defendant did not take any step against the plaintiff for all these three years. It cannot therefore be said that the defendant executed the receipt under undue influence. In this connection the statement of Ahmad Bux, plaintiff's witness may also be considered. He stated that a sum of Rs. 6,288 was paid by the plaintiff's clerk to the defendant. The cross‑examina tion of the witness by the defendant's Advocate is as under

"I was a petty contractor of the defendant. The receipt was executed at plaintiff's house."

This is all the cross‑examination. It is manifest from the cross‑examination that the defendant did not challenge the receipt of the money. There is no cross‑examination on that point. On the other hand, as already mentioned, the defendant admitted the execution of the receipt. The defendant having admitted the execution of the receipt, the burden lay upon him to prove that he did not receive the money mentioned in the receipt. He has failed to discharge the burden. The bare word of the defendant that he did not receive the money cannot be accepted. There may have been some force in the statement of the defendant if he had taken any step against the plaintiff after the execution of the receipt Exh. 50. We would hold that the defendant received the amount of Rs‑. 6,288 from the plaintiff. We also hold that the defendant failed to prove that he executed the receipt under undue influence,

3. The learned Judge somehow or the other took the receipt to be a copy of the original receipt. We have seen the receipt, Exh. 50, which is in original. This fact has not been challenged by the learned Advocate for the respondent before us. The receipt being in original cannot be held to be invalid. Mr. Shamim the learned Advocate for the respondent, however, argued that the receipt does not purport to be a receipt. It is an agreement or in the nature of a trust deed and is therefore insufficiently stamped. There is not much force in this contention. Once a document has been admitted it is not open to the party to l challenge it. In this connection a reference may be made to section 36 of the Stamp Act. It runs as under :‑

"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."

It is not necessary to cite authorities in support of the proposition that once a document has been admitted it cannot be later on challenged on the ground that it is insufficiently stamped. We have already held that the receipt had been exhibited and has been admitted by the defendant. It cannot now be challenged on the ground that it is insufficiently stamped as it is not a receipt. The document bears two annas revenue stamp which is sufficient for an acknowledgment receipt. We should hold that the receipt is not invalid.

4. For the reasons given above, we would allow the appeal and decree the suit for Rs. 6,288 with interest at 6 per cent. from the date of the suit till it is realised. We would, in the circumstances of the case, order the parties to bear their costs throughout.

K. B. A.

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