TEKCHAND Vs. LALITA PERSHAD DIED

JUDGEMENT

(1.) THE petitioner before me is the defendent in the suit. He has preferred this Revision against thejorder dated 2nd May, 1979 passed by the III Assistant Judge, City Civil Court, Hyderabad in I. A. No. 269 of 1979 in O. S. No. 948 of 1969 calling upon the petitioner herein to pay the amount of Rs. 184 being the duty and penalty levied by the Inspector General of Stamps and Registration. What had happened in this case was that the plaintiff had filed a suit for eviction. During the pendency of the suit, the present petitioner filed an agreement of lease and that being on an insufficient stamp, it was impounded by the Court and sent to the Collector under section 38, sub-clause (2) of the Stamp Act for adjudication. THE Collector adjudicated the matter and decided that a sum of Rs. 184 should be recovered. In doing so, the Collector observed that this amount should be recovered from Girdharilal who was the lessor. THE Collector did not send the document back to the Court, as the penalty was not collected and remitted to him. From the impugned order it is clear that a lot of correspondence took place between the Collector and the Court, and finally the Collector by his letter dated 19th February, 1979 informed the Court that it may recover penalty from the petitioner herein. THErefore, the lower Court passed the order calling upon the petitioner go deposit the amount of Rs. 184. In this revision, the learned Advocate for the petitioner contended that the Collector in his order of adjudication not only fixed the amount that should be collected but proceeded to observe that the amount should be collected from Girdharilal. He submits that this document has not been returned from the Collector to the Court and therefore, it was not proper on the part of the Court to pass the impugned Orders at this stage. It was only after the document was received from the Collector, then only such an order should have been passed if at all by the lower Court. In support of his contention the learned Counsel has cited a decision reported in I Ramanaiah v. Bhadrakrishnaiah, 1 regret I cannot accede to the contention advanced by the learned advocate. Section 38 (1) of the Indian Stamp Act provides that

(2.) PROVIDED that, when such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may if he thinks fit remits the whole penalty prescribed by this section. Sub-section (3) of section 40 of the Act provides that "where an instrument has been sent to the Collector under section 38, sub-section (2), the Collctor shall, when he has dealt with it as provided by this section return it to the impounding officer." It would thus be seen that the document in question which is stated to be an agreement of lease was sent to the Collector under section 38 sub-section (2) of the Act and the Collector also had complied with the provisions of section 40 of the Act. In doing so, it appears that the Collector observed that this amount of Rs. 184, should be collected from Giridharilal. The Collector had not taken note of the provisions of section 29 of the Stamp Act which provides with the duties by whom payable. It provides that in the absence of an agreement to the contrary the expense of providing the proper stamp shall be borne.....