SABIR HUSSAIN Vs. STATE OF U P

JUDGEMENT

(1.) In Original Suit No. 279 of 1993. the plaintiff sought for recovery of a sum of Rs. 27,000 pursuant to a bond executed by the defendant. The bond was sought to be admitted In evidence. Admittedly the bond was insufficiently stamped. The trial court by its order dated 30.5.1995 passed an order under Section 35 of the Indian Stamp Act requiring the plaintiff to pay the duty as well as penalty for the purpose of admission of document in evidence as provided in clause (a) of Section 35 of the said Act. A revision was preferred being Civil Revision No. 57 of 1995, against the said order. By an order dated 28.1.1998 passed by the learned Additional District Judge, IIIrd Court. Bareilly, the revision was dismissed and the order of the learned Additional Civil Judge. (Senior Division), IIIrd Court, Bareilly, was affirmed. It is this order which has since been challenged in this petition.

(2.) Mr. M. K. Singh, learned counsel for the petitioner submits that Section 29 requires the executant is to pay the stamp duty. Therefore, the plaintiff cannot be asked to pay the stamp duty. It is for the defendant being executant of the bond to pay the stamp duty in terms of Section 29 of the Act since according to Section 17 such stamp duty was to be payable at the time of execution of the instrument. He also refers to Section 44 of the said Act and submits that the same is not applicable in the present case since the defendant is party to the suit.

(3.) I have heard learned counsel for the petitioner at length.