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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mian Jalal-ud-Din,A.S. Anand, JJ.
B.K. Thaper & Anr. - Appellant
Versus
Vijay Kumar & Anr. - Respondent
LPA No. 1/1975
Decided On : 09 July, 1975
STAMP ACT - SECTIONS 33, 35, 36 - ADMISSIBILITY OF DOCUMENT - JUDICIAL DETERMINATION - TENTATIVE ADMISSION - PROHIBITION - STAMP ACT, SECTION 61(5) - APPEALABILITY OF ORDER - LETTERS PATENT, CLAUSE 12 - INTERPRETATION - JUDGMENT - DEFINITION.
Fact of the Case:
The defendants-appellants filed an application under sections 33/35 of the Jammu & Kashmir Stamp Act read with Order 13 Rule 3 of the Code of Civil Procedure, seeking to impound and declare a lease deed as inadmissible in evidence due to improper stamping. The trial court dismissed the application, holding that the matter was covered by a preliminary issue and that the court had already declined the defendants' prayer to allow the issue to be tried as a preliminary issue. The defendants appealed, arguing that the order was appealable under section 61(5) of the Stamp Act and that it was a judgment within the meaning of Clause 12 of the Letters Patent.
Finding of the Court:
The court held that the appeal was maintainable under section 61(5) of the Stamp Act and that the order was a judgment within the meaning of Clause 12 of the Letters Patent. The court further held that the trial court erred in dismissing the application without judicially determining the admissibility of the lease deed forthwith, as required by section 36 of the Stamp Act. The court set aside the trial court's order and directed the trial judge to judicially determine the admissibility of the lease deed when it is tendered or produced in evidence.
Issues: 1. Whether the order dismissing the application under sections 33/35 of the Stamp Act was appealable? 2. Whether the order was a judgment within the meaning of Clause 12 of the Letters Patent? 3. Whether the trial court erred in dismissing the application without judicially determining the admissibility of the lease deed forthwith?
Ratio Decidendi: 1. Section 61(5) of the Stamp Act provides for an appeal from any order made by the court under the provisions of the Stamp Act. The order dismissing the application under sections 33/35 of the Stamp Act was therefore appealable. 2. Clause 12 of the Letters Patent confers a right of appeal on a person aggrieved by the judgment of a Single Judge of the High Court. The term "judgment" should be construed liberally and includes an order deciding the issue between the parties affecting the merits of the case. The order dismissing the application under sections 33/35 of the Stamp Act was therefore a judgment within the meaning of Clause 12 of the Letters Patent. 3. Section 36 of the Stamp Act requires that the question of admissibility of an instrument must be decided forthwith when the document is tendered in evidence. Once the court rightly or wrongly decides to admit the document into evidence, so far as the parties are concerned, the matter is closed. The trial court erred in dismissing the application without judicially determining the admissibility of the lease deed forthwith.
Final Decision: The court allowed the appeal to the extent indicated and set aside the judgment of the learned Single Judge dated May 24, 1975 only in so far as it relates to the aspect of the matter under the Stamp Act. The learned trial Judge will at the time when the lease deed in question is tendered or produced in evidence judicially determine forthwith the admissibility of the said document on the basis of the plea raised that it has not been properly or sufficiently stamped.
1. This appeal under Letters Patent is directed against the judgment dated May 24, 1975 of the Honble Single Judge (Mufti Baha-ud-Din Farooqi J.) of this court dismissing the application of the defendants appellants dated May 19, 1975. Two applications one dated 19th May 1975 and the other dated 20th May 1975 were filed by the defendants 1 and 2 respectively before the learned Judge. Application dated May 20, 1975 sought the rejection of the plaint on the grounds mentioned therein with which we are not however concerned as that is not the subject matter of the appeal before us, the appeal against that order having been dismissed in limine by us. The subject matter of the present appeal before us is the application dated May 19, 1975. It was filed under sections 33/35 of the Jammu & Kashmir Stamp Act read with Order 13 Rule 3 of the Code of Civil Pr: The appellants prayed inter alia that the court may impound and declare the lease deed dated Sept; 1974 as inadmissible in evidence. The prayer was grounded on the plea that the lease deed was improperly stamped and therefore, could not be admitted in evidence. The learned Judge by his order under appeal dismissed the application and observed that the matter was covered by a preliminary issue and the court had already declined the prayer of the defendants to allow issue No. 4 being tried as a preliminary issue (vide Order dated April 21, 1975) and as the question sought to be raised in regard to the defect in stamping the lease deed was covered by the appropriate issue, therefore, it was hardly necessary to go into this question at this stage of the suit. The court further observed that it was also a case, which involved the examination of a latent defect which required extrinsic evidence to be recorded in order, to find out whether the document was or was not duly stamped. As regards the objection raised by the defendants-appellants that the plaintiffs would seek the admission of the instrument of lease in the course of their evidence and if the document is admitted in evidence and exhibited then their object would be frustrated as they would not be able to raise the objections subsequently in view of the provisions of Section 36 of the Stamp Act, the learned Judge observed that when such an occasion would arise and the document is produced during the course of evidence, the document could be received and exhibited tentatively and such tentative and provisional reception of the document would not amount to its admission within the meaning of Section 36 of the Stamp Act. In the view of the learned Judge it was therefore, neither legal nor proper to decide the question of the admissibility of the document forthwith or even allow the question to be tried as a preliminary issue. He consequently dismissed the application.
2. Aggrieved by this judgment, the defendants have come up in appeal before this Court.
3. Very lengthy arguments were addressed at the bar in order to sustain the respective stands taken by the parties in the appeal.
4. Appearing for the respondents Mr. Gupta has raised a preliminary objection that no appeal lies against the order of the dismissal of the application of the defendants passed by the learned Judge inasmuch as it is neither covered by Section 104 nor by Order 43 Rule 1 of the Code of Civil Procedure nor by Cl. 12 of the Letters Patent. The proposition is canvassed that the subject matter of the appeal has not decided any issue in the case nor have the rights of the parties been affected by such an order. The appellants sought to recall the earlier order of the court by moving the application on May 19, 1975. No appeal was preferred against that order. The suit of the plant-tiffs has proceeded and will proceed in spite of the dismissal of the application of the defendants. In view of this the appeal, it is contended is not maintainable. Reliance has been placed on 35 Madras page 1, AIR 1968 J&K 71, AIR 1952 Nag. 36, and on some ot
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