SAKTI PROSAD GHOSH Vs. KAMALESH MUKHERJEE

JUDGEMENT

(1.) This is a revisional application at the instant of the plaintiff in the Money Suit No. 1 of 1982. Two orders are the subject-matter of chalknge in this revisional application, one is dated April 30, 1982 and the other is dated July 17, 1982. The first of the aforesaid two orders was passed by the learned Subordinate Judge really behind the back of the plaintiff whereby he impounded a document which was earlier taken into evidence as Ext. 1, and directed the plaintiff to pay a stamp duty of Rs. 204/- together with a penalty of Rs. 2,040.00. Since such an order was passed ex parte as against the plaintiff and contrary to the provisions of section 36 of the Stamp Act, the plaintiff-petitioner filed an application under section 151 of the Code of Civil Procedure praying for reconsideration of the said order. The prayer for reconsideration was refused by the learned Subordinate Judge by the latter order where he observed that he found no ground for reconsideration.

(2.) When the suit was called on for hearing the plaintiff was examined and in course of his examination he produced a letter of the defendant which was marked as Ext. 1. It is necessary to refer to the contents of this letter. In this letter the defendant first acknowledges that he had purchased certain old furniture from the plaintiff valued at Rs. 16,000.00, the particulars whereof were set out in the letter. It is further acknowledged that such purchase was made without any written terms because the defendant thought that he would be in a position to pay off the entire sum within a short time. The letter then goes on to acknowledge that upto the date of writing the letter he was not in a position to pay anything and accordingly, the letter was being written since something must be kept in writing. Such, in substance, is the contents of this letter, which being admitted into evidence, was marked as Ext. 1. It was so admitted on April 21, 1982 but by a subsequent order dated April 30, 1982 the learned Subordinate Judge impugned the said document. Ext. 1, when he passed the following order:-

(3.) It is obvious that the learned Subordinate Judge was passing such an order in the absence of the plaintiff. Therefore, it was necessary for him, if he had any doubt in his mind, to hear the parties before passing any such order. That was not done. On the other hand, when the plaintiff filed an application under section 151 of the Code for reconsideration of such an ex parte order the learned Subordinate Judge rejected the said application by observing that he finds no ground for reconsideration. The fact that he irregularly passed an ex parte order was sufficient ground for reconsideration, if not any more. Be that as it may, the order dated April 30, 1982 itself is wholly misconceived. In order to constitute a bond there must be an express obligation to pay. We have set out the terms of the letter hereinbefore which at least constitutes acknowledgement of an unpaid price of furniture purchased. There is no obligation expressed therein clearly by the defendant to constitute a bond. Such being the position, the learned Subordinate Judge, when he made the order dated April 30, 1982, was proceeding upon a misconception as to the true nature of the document. This apart, the learned Subordinate Judge was totally oblivious of the provisions of section 36 of the Stamp Act which prevented him from making an order of impounding the document after the document has gone into evidence and marked Ext. 1 In that view having heard the revisional application on contest we allow the same and set aside the impugned orders. The document marked Ext. 1 will now go into evidence so marked. The application is disposed of. Let the order be communicated to the Court below forthwith. Sanyal, J. : I agree.