GENDALAL Vs. DULICHAND AND OTHERS

JUDGEMENT

(1.) THE facts of this case are as follows. One Genda Lal decree -holder filed an appeal against Dulichand etc. in this Court on 7 -12 -1949. The appeal was admitted on 10 -8 -50. On 26 -4 -1950 the Registrar made a note on the order sheet that the appellant did not pay process fee; hence the case be put up before the Court for orders. For various reasons the case did not come up before the Division Bench for hearing until 9 -8 -1950. On 9 -8.1950 the learned counsel for the appellant submitted an application stating that he paid the process fee of Rs. 2 on or about 15 -3 -1960 but that appears to be lost in the office. The office, therefore, be ordered to search for the same and if it could not be found the appellant is willing to pay process fee again. In support of this application he filed an affidavit on an unstamped paper. The Registrar has submitted a report for orders stating that the affidavit requires a stamp worth Rs. 1/4 as Art. 4 (a), Stamp Act, is not applicable to it. The question for consideration, therefore, is whether the affidavit in question can be filed in the Court on an unstamped paper.

(2.) THE learned counsel for the appellant refers to Art. 4 (a), Stamp Act, and contends that as the affidavit is required for the immediate purpose it is exempted from the stamp duty. In support of his argument he referred us to two cases viz. Siri Kishan Das v. Md. Nazir,, A.I.R. 1947 ALL 37 and In re Sheshamma,, 12 Bom. 276., A.I.R 1947 ALL 37 is no doubt a Full Bench case. Their Lordships of the Allahabad High Court observed that in their judgment the word 'immediate' referred to purpose and not to time; hence it was unnecessary to stamp the affidavit. With great respect to the opinion of the learned Judges we find ourselves unable to agree with their view. The words used in Art. 4 (a) are as follows : "for the immediate purpose of being filed or used in any Court or before the officer of any Court." The word 'immediate' no doubt precedes the word 'purpose'; but the word 'purpose' cannot be isolated from the words 'being filed or used in any Court or before the officer of any Court. The latter portion of Art. 4 (a) specifies purpose for which exemption can be given. It is not each and every purpose which is exempt from stamp duty. But if the purpose be to file or use the affidavit in any Court or before the officer of the Court, then the affidavit can be exempted from stamp duty. Therefore, the word immediate also has to be linked with both the filing and using of the affidavit in any Court or before any officer of the Court. If therefore, an affidavit is to be filed or used immediately in any Court or before any officer of the Court, it can claim exemption from stamp duty. Whether the filing or using of an affidavit is immediate or not is to be determined in relation to the facts of each case. In 12 Bom. p. 276, winch is also a Full Bench case, their Lordships observed as follows: When a statute requires that something shall be done, 'forthwith' or 'immediate' or even 'instantly' it would probably be understood as allowing a reasonable time for doing it.....The last case shows that the test is whether, under the circumstances, there wag such unreasonable delay as would be inconsistent with what is meant by 'immediate'. From the examination of the dates we think we may inter that the purpose existed at the time the affidavit was made of filing it in the Court at Karwar, and that this purpose was carried out promptly. From these observations it is clear that the word 'immediate' is not unrelated to time. We are clearly of the opinion that if under the circumstances of the case, the purpose is not immediate, there can be no exemption from stamp duty.

(3.) THIS case was put up for order for nonpayment of process fees on 9 -8 -1950. The learned counsel for the appellant filed an application on 9 -8 -1950, stating that he actually paid the process fee about 15 -3 -1950. In support of this application he wanted to file an affidavit. It is clear, therefore, from the facts of this case that the affidavit was required for the immediate purpose of using in the Court and it should, therefore, be exempt from stamp duty. We, therefore, hold that the affidavit filed by the learned counsel for the appellant on an unstamped paper is valid.