Sunderi Shivram Shetty (Smt. ) & others vs Shaikh Mohamed Hussain Shaikh Mohamed Umar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(Bom) 312

IN THE HIGH COURT OF BOMBAY
H. Suresh, J.
Sunderi Shivram Shetty (Smt.) others ... Petitioners.
Versus
Shaikh Mohamed Hussain Shaikh Mohamed Umar ... Respondent.
Civil Revision Application No. 34 of 1988, decided on 19-9-1988.
Advocates appeared :
Ajit P. Shah, for petitioners.
Kum. Geeta R. Shastri, Asst. Govt. Pleader, for Government.

Headnote:Section 34 Civil Procedure Code, Section 115-Suit for recovery of possession-Decree Confirmed by appellate court-Payment of stamp duty and penalty Ordered-Challenged--Validity-Held-Appeal or Revision not challengeable- When a party pays duty and penalty.
       Once a party pays the duty and penalty and the document is admitted it then ceases to be a matter between the litigants, as it then possess on to the realm of the Revenue Authorities, the question being only one of refund of excess payment. In such an event, there can be no question of challenge by way of Appeal or Revision But, if at the instance of an opponent, the trial Court passes an erroneous order compelling a party to pay duty and penalty on a document which requires no stamp duty, and the party affected wants of challenge the same, at that stage, it cannot be said that no Revision would lie.
       "Case decided" and "jurisdiction" - Meaning of
       In the case of Prabhudas v. Bhogilal, reported in AIR 1968 Guj 236, where there is an elaborate discussion of the meaning of the words "case decided" occurring in Section 115 of the Code of Civil Procedure, and also of the scope of clauses (a), (b) and (c) of Section 115 of the Code of Civil Procedure. The Full Bench then relied on the following passages of the Division Bench (i. e., paragraph 9 at p. 240 of AIR):
       "The question whether the document Exhibit 411 was a promissory note and was, therefore, by reason of inadequacy of stamp inadmissible in evidence was clearly a question within the jurisdiction of the trial Court and the decision of this question one way or the other did not have any relation to the jurisdiction of the trial Court. It cannot be said that by erroneous decision of this question the trial Court clutched at jurisdiction did not possess or refused to exercise jurisdiction vested in it by law. Nor can it be said that the trial Court in arriving at the decision acted in breach of any provision of law or committed any error of procedure in the course of the trial which could be regarded as materia of course it must be conceded that if the decision of the trial Court was erroneous, the error committed by the trial Court was undoubtedly an error of law, for the decision turned on the question whether the document Exhibit 4/1 was a promissory note within the meaning of Section 2 (22) of the Stamp Act which would be clearly a question of law but the error of law did not have relation to and was not concerned with the jurisdiction of the subordinate Court and, therefore, none of the three clauses of Section 115 was attracted in the present case. The revision application was, therefore, incompetent."
       What is significant is that in this very judgment, the Full Bench referred to certain observations Mathew, J. in M L. Sethi v. R. P. Kapur, AIR 1972 SC 2379 and opined that Mathew, J. could not have introduced any new concept while considering the meaning of the word "jurisdiction" under Section 115 of the Code of Civil Procedure. It is apt that I quote the observations of Mathew. J. (in paragraph 10) :
       "The word "jurisdiction" is a verbal cast of many colours. Jurisdiction originally seems to have bad the meaning which Lord Reid ascribed to it in Anisminic Ltd v. Foreign Compensation Commission, (1969) 2 AC 147, namely, the entitlement "to enter upon the enquiry in question."
       Section 115.
       See Bombay Stamp Act, 1959, Section 34.

JUDGMENT - H. SURESH, J.:---The petitioners had filed a Civil Suit bearing No. 1040 of 1968 in the Court of Small Causes, Pune, as against the respondent herein for recovery of possession of certain premises under section 13(1)-(hh) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after referred to as "the Bombay Reny Act"). The trial Court decreed the suit and the decree was confirmed by the Appellate Court. The petitioners obtained possession of the premises and after giving suitable undertaking constructed a new building. As required under the law, the respondent was given one tenement in that new building. It appears that there was some delay in handing over possession of the new tenement and, therefore, the respondent had taken certain contempt proceeding. However, during the pendency of the said proceeding, the petitioners handed over to the respondent the possession of the new tenement and a receipt of possession dated March 15, 1980 came to be passed by the respondent.

2. Thereafter the petitioners filed another suit being Civil Suit No. 1245 of 1982 in the Court of Small Causes, Pune, as against the respondent for possession of the said tenement on the ground of arrears of rent. The suit was decreed in the favour of the petitioners on February 6, 1986. The respondent thereafter preferred an appeal being Appeal No. 605 of 1986 in the District Court, Pune. During the pendency of this appeal, the petitioners' filed an application for production of additional evidence. The petitioners application was allowed by the District Court and the matter was remanded back to the Court of Small Causes, Pune, for recording additional evidence. The petitioners produced the said receipt of possession dated March 15, 1980, referred to above. The respondent raised an objection as to the admissibility of the said receipt on the ground that the said document is a lease deed and that it has not been properly stamped. The learned Judge heard both the sides and finally passed an order dated August 20, 1987 whereby he held that the said receipt is a lease deed for an indefinite period and the document has not been stamped as required by the law and the document will have to be impounded and he directed that the document in question be sent to the Collector of Pune to recover deficit stamp duty and penalty, in all amounting to Rs. 18,700/- from the petitioners. It is against this order the petitioners have preferred the present civil revision application.

3. The respondent has not chosen to appeal in this matter. However, it appears that the learned Judge, when he issued Rule, also directed that a notice be given to the Government Pleader. That is how Kum. Geeta Shastri, Assistant Government Pleader, appeared before me and made submissions.

4. The relevant portion of the said receipt of possession dated March 15, 1980 is as follows:

Receipt of Possession, Date: 15-3-1980 :-

Party taking in writting :-

1) Shri N. Shivaram Shetti, residing at House No. 405, Ganesh Peth, Pune 2.

2) Smt. Sundari Shivaram Shetti, residing at aforesaid.

Party giving in writing :

1) Shri Shaikh Mohammad Shaikh Mahammad Umar, residing at House No. 1103, Raviwar Peth, Pune-2.

(I) give the receipt of Possession in writing as under :-

1. The Property bearing Ganesh House No. 405, situate at Pune Peth, being of your ownership and management is in your possession by the right of full ownership. With regards to the said property, a suit was going on in the Court regarding the rental 'Jagya' (i.e. premises) between you and us. In this matter you gave us a notice on the date 4-3-1980 and asked us to take possession of the rental premises as per the undertaking given in the suit. According to the said notice, House No. 405 situate at Ganesh Peth, Pune, being the property containing therein a shop premises admeasuring 40' x 8' and having a frontage, being situation the ground floor of the said building, aburding on Ranapratapsing Road (Lead

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