JAGAT NARAYAN, J.—This is a plaintiffs revision application against an order of the Senior Civil Judge No. 2 Jodhpur, holding that a document relating to the sale of a truck is inadmissible in evidence by virtue of sec. 35 of the Stamp Act as it is not duly stamped.

2. The case of the plaintiff with regard to this document is that it is an agreement or memorandum of agreement relating to the sale of goods and is exempt from stamp duty under Exemption (a) to Art. 5 of the First Schedule of the Stamp Act. The trial court held that it is a conveyancer which is chargeable with stamp duty under Art. 23 of the First Schedule.

3. On behalf of the defendants two preliminary objections have been taken with regard to the maintainability of this revision application. The first objection is that the finding of the trial court is based on an interpretation of the document and an interpretation of the provisions of the Stamp Act and if there is any error it is an error of law which cannot be interfered with in revision.

4. It is not correct to say that no error of law can be corrected on an application under sec. 115 C.P.C. An error of law by which a court assumes jurisdiction which it has not, or declines to exercise a jurisdiction which it has, will come under clauses (a) and (b). An error of law in the mode prescribed for the exercise of jurisdiction will come under clause (c). Such errors can be corrected under sec. 115 C. P. G. It is only a decision of the case on merits arrived at in the proper exercise of jurisdiction under sec. 115 C.P.C. on the ground that it is erroneous in law. I All procedural errors fall under clause (c). The question as to whether a document is admissible or not admissible is a matter of procedure. The first preliminary objection has therefore no force.

5. The second preliminary objection is that as the plaintiff has an alternative remedy under the Stamp Act this Court should not interfere with the order of the trial court under sec. 115 C.P.C. That remedy is provided by sec. 45 of the Stamp Act which runs as follows :

"45. (1) Where any penalty is paid under sec. 35 or sec. 40, the Chief Controlling Revenue-authority may, upon application in writing made within one year from the date of the payment, refund such penalty wholly or in part,

(2) Where, in the opinion of the Chief Controlling Revenue-authority, stamp duty in excess of that which is legally chargeable has been charged and paid under sec. 35 or sec. 40, such authority may, upon application in writing made within three months of the order charging the same, refund the excess"

6. The power given to the Chief Controlling Revenue-authority to refund is discretionary and no further proceedings are maintainable if the application is refused. The remedy provided by sec. 45 is thus not as efficacious as the remedy provided under sec. 115 C.P.C. I am therefore of the opinion that a revision application should be entertained against an order of the subordinate court holding that a document is inadmissible in evidence under sec. 35 of the Stamp Act, if the contention of the applicant is that either the document does not require any stamp or it is sufficiently stamped. If however the document is insufficiently stamped (which includes documents which require to be stamped but are unstamped) no revision would lie against an order offering to admit the document in evidence on payment of a certain amount of duty and penalty if the contention of the applicant is that the document has been wrongly classified and the duty and penalty demanded are excessive.

7. My attention has been drawn to decisions of some High Courts in which it has been held that as an alternative remedy has been provided under sec. 45 of the Stamp Act, no revision application should be entertained by the High Court. For reasons given above, I am unable to subscribe to the view taken in them. I accordingly hold that the present revision application is maintainable.

8. The facts of the case are that a truck

Click Here to Read the rest of this document