The court has the power to levy the penalty after impounding the document when such a document is sought to be tendered in evidence.

K. JAYACHANDRA REDDY, J.

( 1 ) THIS is an application to issue a writ of certiorari to quash the order of the 1st respondent, Additional Rent Controller, Hyderabad in R. C. No. 390 of 1968.

( 2 ) THE question, which is of day to day importance that arises for consideration in this writ petition is"whether the Court has power under S. 38 of the Stamp Act to levy the penalty after impounding the document when such a document is sought to be tendered in evidence. "

( 3 ) FOR a better appreciation of the question involved the necessary facts may be stated. The petitioner took a house on rent from respondents 4 to 5 who filed an eviction petition before the 1st respondent, which is pending. In compliance with the order of the 1st respondent the landlords produced the rental deed in original which was found to be sufficiently stamped. The landlords did not seek to tender the same in evidence. From the record it appears that the writ petitioner, i. e. , the tenant, alone wanted to tender the rental deed in evidence. The learned Rent Controller first decided that the tenant was liable to pay the deficit stamp duty. The Rent Controller also directed the petitioner to pay a penalty of Rs. 3,608 subject to the admissibility of the deed in evidence as the petitioner alone wanted to tender the rent deed in evidence. The matter was carried in appeal (R. A. No. 324 of 1973) before the Chief Judge, City Small Causes Court, Hyderabad, which was dismissed. The petitioner has filed this writ petition seeking a writ of certioarari to quash the order of the 1st respondent.

( 4 ) SRI N. Bhaskara Rao, the learned counsel for the petitioner contended that the 1st respondent has no jurisdiction to levy penalty after impounding and that his duty was to send the document to the Collector under S. 38 (2) of the Stamp Act for the purpose of levying penalty and it is the Collector that his power to levy the penalty.

( 5 ) SECTION 38 of the Indian Stamp Act is in the following terms:-"38. Instruments impounded how dealt with. (1) When the person impounding an instrument under S. 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by S. 35 or of duty as provided by S. 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector or to such person as he may appoint in this behalf. (2) In every other case, the person so impounding an instrument shall send it in original to the Collector. "it can be seen that S. 38 (1) of the said Act applies to cases where the stamp duty and penalty provided by S. 35 have been collected by the authority or Court who receives the document and admits the same in evidence. It is also required that the authorities shall send an authenticated copy of such instrument together with a certificate stating the amount of duty and penalty levied and send the amount collected to the Collector. Sub-sec. (2) of S. 38 refers to every other case, viz. , where the document is impounded but the stamp duty and penalty are not collected.

( 6 ) RELYING on a judgment of the Hyderabad High Court in Jai Narayan v. Yasin Khan, AIR 1955 Hyd 17 (FB) the learned counsel for the petitioner sought to contend that it is the Collector alone who has the power to assess the penalty and the Court has to power only to impound. In that case the facts are different. It appears a Division Bench of the High Court impounded the document of award and forwarded the same to the Inspector General of Registration sent the document to the concerned Collector who after enquiry reported that the High Court had no power to assess the stamp duty and penalty. The Inspector General of Registration agreed with the opinion of the Collector. In view of the earlier order of the Division Bench, the matter was referred to the High Court

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