Jayawickrama Et Al V. Amarasooriya

Present: Pereira J. and Ennis J.

JAYAWICKRAMA et al. v. AMARASOORIYA

164-D. C. Galle; 11,862.

Pleading insufficiently stamped-Not rejected by Court-Presumption in favour of an adjudication as to its sufficiency-Inadvertent omission of the Court to consider question of stamp duty-Court may, return pleading for proper stamping before other side takes any steps in case-Attorney-General to take steps to recover deficiency of duty- Civil Procedure Code, ss. 46, 77-Objection not to be taken in answer as to insufficiency of duty.

When a plaint or an answer is not rejected by a District Judge under section 46 or section 77 of the Civil Procedure Code, the presumption is that the Judge has adjudicated in favour of the party who had tendered the pleading on the question as to the sufficiency of the stamp thereon. When a plaint or answer is accepted as the result of an inadvertent omission on the part of the Court to consider the question of the sufficiency of stamp duty, it may be that before any step in the regular course of procedure is taken by the opposite party the Court may return the pleading to be properly stamped; but, generally speaking, where an insufficiently stamped pleading is accepted after consideration of the sufficiency of stamp duty or inadvertently, the remedy, if any exists, is by means of such action as the Attorney General, as representing the Crown, to which all stamp duties are a debt, may be deemed to be entitled to take. No objection can be taken by a defendant in his answer on the ground of the insufficiency of the stamp on a plaint.

THE facts appear from the judgment.

Bawa, K.C., for defendants, appellants.

H. J. C. Pereira, for plaintiffs, respondents.

Cur. adv. vult.

February 20, 1914. Pereira J.-

In this case the defendant appeals from two orders made by the District Judge: (1) an order directing that this action do proceed on the plaintiffs supplying a deficiency of stamp duty on the plaint; and (2) an order rejecting the 2nd, 3rd, 4th, 5th, 6th, and 7th issues suggested by the defendant's counsel. As regards the first order, the appellant's contention is that, having found that there was a deficiency of stamp duty on the plaint, the District Judge should have dismissed the plaintiff's claim altogether. The only provision of the law now in force relating to stamps on plaints appears to be the provision of section 46 of the Civil Procedure Code. Section 38 of Ordinance No. 23 of 1871 and section 34 of Ordinance No. 3 of 1890 gave the power to Judges to require an insufficiently stamped pleading to be duly stamped, and when that was done, to proceed with the action as if the pleading had been originally duly stamped but these Ordinances were repealed by Ordinance No. 22 of 1909, which contained no such provision as that mentioned above. Section 37 of the Ordinance, I do not think, applies to pleadings in cases. It refers to "instruments tendered in evidence, " and clearly a plaint does not answer to that description of document. So that when, in the case of a plaint under section 46 of the Code and in the case of an answer under section 77, the Judge does not reject the pleading, but accepts it, the presumption is that he has adjudicated in favour of the party who has tendered the document the question of the sufficiency of the stamp thereon, and I doubt that the adjudication in such a case can be interfered with by anybody. In the case, however, of a plaint or answer being accepted per incuriam, that is to say, as the result of an inadvertent omission on the part of the Court to consider the question of the sufficiency of the stamp thereon, it may be that before any step in the regular course of procedure is taken by the opposite party the Court may return the pleading to be properly stamped; but this question need not be considered on this appeal, because we have no information from the District Judge that the plaint in this case wa

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