The main legal point established in the judgment is that a document must be admitted in evidence before the court can levy any penalty for insufficiency of stamp duty, as per the provisions of the Kerala Stamp Act.

C.S. Rajan, J.

The petitioner was the fourth defendant in O.S. No. 379 of 1980 on the file of the Munsiff s Court, Changanacherry. The suit was one for realisation of a loan amount from defendants 1 to 3. The petitioner was an assignee of the ice plant which belonged to the first defendant in the suit. Evidencing the above assignment the petitioner produced a document styling itself as an assignment deed. The above instrument was executed on a stamp paper of Rs. 3/-. The above document, though produced by the petitioner, was not either tendered in evidence or marked as exhibit. The petitioner was also not examined. The suit was finally decreed against defendants 1 to 3 and dismissed against the petitioner. The learned Munsiff passed an order stating that a stamp duty of Rs. 1,787/- was pay able along with penalty of Rs. 17,870/-. The third respondent was directed to realise the above amount. When the third respondent took action pursuance to the order of Munsiff Court, the petitioner filed a revision petition before the 1st respondent. The first respondent forwarded the revision petition before the second respondent and the second respondent in turn referred the matter to the third respondent for decision.

2. The third respondent by Ext. P1 order directed the petitioner to pay Rs. 1,787/ - as stamp duty and Rs. 5,361/- as penalty. The petitioner filed a revision before the second respondent which was dismissed by Ext. P2 order. Aggrieved by Exts. P1 and P2 the petitioner filed revision before the first respondent which was also dismissed by Ext. P4.

3. Sri. N. Govindan Nair, learned counsel for the petitioner urged that the action of the learned Munsiff in directing to levy stamp duty and penalty is without any jurisdiction. Unless the document in question was tendered in evidence by way of marking as an exhibit the Court cannot levy any penalty for insufficiency of stamp duty. In this connection, it is worthwhile to note various provisions contained in the Kerala Stamp Act with regard to the impounding of document and imposition of penalty. According

to S.3

3 of the Kerala Stamp Act, every person who has authority to receive evidence under law before whom any instrument is produced shall impound the same if it appears to him that such instrument is not duly stamped. According to S.34, no instrument chargeable with duty shall be admitted in evidence unless such instrument is duly stamped. S.35 states that where an instrument has been admitted in evidence, such admission shall not be questioned at any stage of any suit or proceeding on the ground that the instrument has not been duly stamped. Under S.37, the person impounding an instrument under S.33 shall send to the Collector an authenticated copy of the instrument with a certificate stating the amount of duty and penalty levied in respect of the instrument.

4. The learned counsel relied on decision of this Court reported in Chanda Pilled v. Munsiff, Thiruvalla & Ors. (1975 KLT 753) to contend that as long as an instrument is not admitted in evidence, the Munsiff s Court has no jurisdiction to levy any penalty or charge any duty on the same. In the above case, the petitioner therein who was the plaintiff in the civil suit relied on an 'assignment deed which was insufficiently stamped. The document was not marked in evidence. But the learned Munsiff impounded the document and made a requisition to the District Collector to recover the amount of stamp duty and penalty. Dealing with the above contention Justice Chandrasekhara Menon held as follows:

"As long as an instrument is not admitted in evidence, the Munsiff though he may have impounded the same has no jurisdiction to levy any penalty or charge any duty on the same. The question whether the Munsiff should not under sub-s.(2) of S.37 by which every person impounding an instrument has to send it in original to the Collector, depends upon the answer to the question whether the case is one which can come within the descri