1936   Present   :  Macdonell C.J. and Poyser J.

DE SILVA v. HASSANALLY.

126-D. C. (Inty.) Galle, 33,930.

Plaint-Insufficiently stamped-Accepted by Court-Objection raised by defendant-Deficiency supplied by plaintiff-Plaint made good.

Where a plaint insufficiently stamped is accepted by the Court and the plaintiff, on an objection raised by the defendant, supplied the deficiency of stamp duty,-

Held, that the irregularity was cured and' that the action should not be dismissed.

Jayawickreme v. Amarasooriya [1 17 N. L. R. 174.] followed.

APPEAL from an order of the District Judge of Galle.

C. V. Ranawake (with him S. W. Jayasuriya), for plaintiff, appellant.

L. A. Rajapakse, for first defendant, respondent.

March 11, 1936. MACDONELL C.J.-

This was an appeal from an order of the District Court striking out the plaint lodged by the plaintiff in a section 247 action on the ground that it was insufficiently stamped. The facts were these. The plaintiff, intending to bring a section 247 action, filed his plaint on March 14, 1935, admittedly within the fourteen days allowed by that section, and it is common cause that the plaint was insufficiently stamped at that time. The plaintiff took out summons. Thereafter on July 10, 1935, the proctor for the first defendant moved that the plaint be rejected on the ground that it had been insufficiently stamped and notice was given to the plaintiff for the argument of this matter a week hence, July 17. On July 16 occurs the following entry in the journal. The proctor for plaintiff " tenders stamps of the value of Rs. 9 being deficiency of stamp duty and moved that the same be accepted. Stamps cancelled and affixed". The inquiry was duly held and the learned Judge on the authority of the decision in British Corporation v. United Shipping Board[1 36 N. L. R. 225. ] this has now been confirmed by the three Judge decision in Attorney-General v. Karunaratne [2 37 N. L. R. 57.]held that he could not draw a distinction between a petition of appeal and a plaint, since the statute required both of them to be properly stamped and to be filed within a prescribed time. He held therefore that the decision in 36 N. L. R. 225 governed the matter, and dismissed the plaintiff's action. From this decision the appeal is brought.

The law on the subject of stamping plaints is to be found in two sections of the Civil Procedure Code. Section 39 says, " Every action of regular procedure "-this will include a section 247 action-" shall be instituted by presenting a duly stamped written plaint", and section 46, after giving the reason's for which the Court may in its discretion refuse to entertain a plaint, goes on to say that " (h) Where the relief sought is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamps within a time to be fixed by the Court fails to do so . . . . the plaint shall be rejected". It will be seen from the facts in this case that the plaint when presented was not duly stamped as section 39 requires it to be, and that the plaintiff did not wait to be required by the Court to supply the necessary stamp within the time fixed by the Court but tendered the right stamp sponte sua. Strictly it is not a case which the Code has provided for. This requirement about stamps on pleadings is one in the interests of the revenue and the party must pay for such stamp as the revenue requires. When he has affixed such stamp to his pleading, it will be receivable, unless the law says that he has been too late in affixing the stamp. Now the portion of section 46 which has been quoted above, read in conjunction with section 39, shows that a plaint insufficiently stamped when presented Is not incurably bad, but that the Court can give the person bringing the plaint a time limit within which to stamp it properly, and there can be no d