Back
1979 Supreme(MP) 33
HIGH COURT OF MADHYA PRADESH
U.N. Bhachawat, J.
Satish Kumar
v.
Lalsingh
C. Rev. No. 1208 of 1977 against the order passed by Shri S.P. Khare, 2nd Civil Judge Class I, Bhopal in M.J.C. No. 10 of 1977
Decided on : 9-3-1979
P.R. Padhye for applicant
P.S. Khirwadkar for non-applicants
Headnote:(1) Stamp Act. 1899 - S.33(1) and (2) - question of document being properly stamped - to be determined when it is being produced.
The expression "instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same" clearly indicates that it is at the very point when the document is being produced, the question of its being properly stamped has to be determined. This view gets reinforced from sub-section (2) of section 33 of the Act. [Para 6
(2) Stamp Act, 1899 - Ss.35 and 36 - words 'for any purpose' in section 35 includes determination of genuineness-document cannot be admitted only for ascertaining genuineness before it is impounded in view of S.36.
The words 'for any purpose' in the section are of wide amplitude and cover within its ken the question of determination of the genuineness of the document. To prove the genuineness of a document bas necessarily to be put in evidence, and once the document is admitted in evidence Tightly or wrongly its admission cannot be questioned on the ground of insufficiency of stamps at subsequent stage in view of section 36 of the Act. Therefore, if the argument of the learned counsel is accepted and it is held that when the genuineness of the insufficiently stamped document is challenged, it has first to be admitted in evidence to decide its genuineness and only when the genuineness is established the deficit stamp duty and penalty has to be charged, would be to add to the Act a provision which it does not contain and it would tantamount to permitting an infringement of section 35 of the Act. [Para 7
(3) Stamp Act, 1899- Ss. 2(14), 35 and 36 - copy of document is not document as defined in S.2 (14) - it is neither an instrument for purpose of S.36 nor can be validated under S. 33.
Section 35 is not concerned with a copy of an instrument; a party can only be allowed to rely on a document which is an instrument for the purpose of section 35 and in view of the definition of the instrument contained in section 2 (14) of the Act; there is no scope for inclusion of a copy of a document as an instrument for the purpose of the Act. Under section 35 of the Act there can be validation only of the original when. It is unstamped insufficiently stamped A copy of an instrument cannot be validated. AIR 1962 SC 110 and AIR 1971 SC 1070 followed. [Para 8
(4) Evidence Act, 1872 – S.62 and Stamps Act, 1899 - S.35 – carbon copy of a document - nature of - it is primary, or original document - call be validated under S. 35 of Stamps Act.
In the instant case the trial Court has neither ordered for the validation of a copy or the admission of a secondary evidence. In the instant case the final Court has held that as the carbon copy purports to have been signed by parties it in original. The view taken by the trial Court is correct. What appears to be is that the document is prepared in duplicate and each one has been signed by the parties, is a primary evidence in view of section 62 of the Evidence Act. 1973 MPLJ SN 37 and AIR 1962 SC 110 relied on. [Para 8
(5) Stamp Act, 1899 - S.35 (Proviso) - sum equivalent to ten times of deficit stamp duty exceeding Rs. 5 - amount of penalty would be 10 times of such deficient portion of stamp duty - Court has no discretion to reduce panalty. [Para 9
Bhachawat. J. - 1. This objector's revision is directed against the order dated the 25th October, 1977 of the Court of Second Civil Judge, Class I, Bhopal, in M.J.C. No. 10 of 1977, arising out of the Execution Case No.181-A of 1969 in the same Court.
2. Briefly stated, the facts leading to the present revision are these. Non-applicant No.1 had obtained a decree for ejectment against non-applicant No.2 in respect of the suit premises in Civil Suit No. 181-A of 1969. When this decree was put in for execution, the objector-application herein and non-applicant No.3 here in (hereinafter referred to as 'the objector's) intimated the executing Court that they were occupying the suit premises as tenants of non-applicant No.1 and would, therefore, obstruct the delivery of possession in execution of a warrant of possession against non-applicant No.2. In the course of inquiry under Order 21, rule 97 of the Code of Civil Procedure (hereinafter referred to as 'the Code'), the objectors sought to tender in evidence a carbon copy of the document dated 1-2-1977 in respect of their case. The nomenclature given to this document is 'rent-agreement and purports to have been signed by both the parties, that is, non-applicant No.1 and the objectors. The Court below found that the document for the purpose of Stamp Act is a lease and was, therefore, liable to stamp duty as a conveyance under Article 23 of Schedule I of the Act and on that basis, it held that the document was insufficiently stamped inasmuch as according to the objectors themselves the original was stamped with Rs. 5 only, and holding that the carbon copy, which was filed before the Court, was a primary evidence within the meaning of section 52 of the Evidence Act 33 it purported to have been executed by both the parties, ordered that it would be admitted in evidence under section 35 of the Indian Stamp Act thereinafter referred to as 'the Act' subject to the payment of the deficit duty Rs. 1,080 and penalty Rs. 10,800. Being aggrieved by this order, this revision has been field by one of the objectors.
3. The learned counsel for the objectors has raised the following contentions before this Court :
(i) The Court below was not competent to determine the question whether the document in question was insufficiently stamped and could not be admitted in evidence without the payment of the alleged deficit stamp duty and penalty till the Court decided about the genuineness of the document as the non applicant had challenged the execution of the document by him.
(ii) That the document produced before the Court was only a copy and no deficit stamp duty and penalty could be charged on the copy of the document which has been found to be a lease deed ill view of the provisions contained in section 35 of the Act.
(iii) That it is not imperative for the Court to levy a penalty of a sum equal to 10 times of the deficient portion, The Court has jurisdiction to impose lesser amount in its discretion. The Court below acted injudiciously in imposing the maximum penalty, labouring under a misapprehension of law that it had no such jurisdiction to impose a lesser amount.
4. The learned counsel for the decree-holder, reiterating the reasons given by the Court below supported the impugned order.
1 shall proceed to deal with the contentions raised by the learned counsel for the objector ad seriatim.
5. The learned counsel for the applicant submitted that a duty is chargeable on an instrument which has been defined under section 2 (14) of the Act, to include every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded and argued that when the genuineness of the document is challenged it cannot be held to be a document unless it is proved and held to be genuine. The argument does not impress me and has to be repelled.
6. Chapter IV of the Act deals with the instrument not duly stamped. Section 33 (1) of the Act provide that:
"33. Examinatio
