KISANLAL KOTARI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal against the judgment and decree dated 3-51954 of Sri C. Mohapatra, Additional Subordinate Judge of Berhampur confirming a decision of the Munsif of Berhampur arising out of a suit for recovery of stamp duty and penalty realised by the Collector of Ganjam in exercise of his powers under the Indian Stamp Act. The plaintiff had filed a S. C. C. suit before the Munsif of Berhampur wherein he relied upon a deed which was framed as one for dissolution of partnership. It not having been stmaped, the document was sent to the Collector of Ganjam for realisation of stamp duty and penalty. The Collector thereon having construed the document as one for partnership called upon the plaintiff to pay a sum of Rs. 223/4 towards deficit stamp-duty and penalty. The plaintiff avers that the document is one for dissolution of partnership and as such he is liable to pay only rs. 55/- as stamp-duty and penalty. He, therefore, after service of notice under section 80, Civil Procedure Code, has brought the present suit for refund of the balance amount deducting the sum of Rs. 55/-from out of the money paid by him in favour of the Collector, that is, Rs. 223/4, on the ground of illegal exaction of stamp-duty and penalty.

(2.) THE learned trial court found that the document was really one for dissolution of partnership; but he dismissed the suit on the ground that the Civil Court had no jurisdiction to set aside the order of the Collector calling upon the plaintiff under the Stamp Act to pay the deficit stamp-duty and penalty. The lower appellate court, however, has confirmed the view of the trial court that the Civil Court has no jurisdiction.

(3.) THE main point argued by Mr. M. S. Rao, appearing on behalf of the plaintiff-appellant, is that the Civil Court has jurisdiction to entertain a suit of this nature. Before coining to examine the disputed point, I will refer to a few relevant sections of the Stamp Act in order to fully appreciate the implications of the point of controversy. Chapter IV oi the Stamp Act deals with "instruments not duly stamped. " Section 33 empowers the authority, before whom an unstamped document is produced and who is entitled to take evidence, to impound the document. Section 35 provides that no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having the authority to receive evidence unless such an instrument is duly stamped. The proviso to the section recites that such instrument is to be admitted into evidence on payment of the duty, with which the document is chargeable and penalty or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with penalty. The next relevant section is section 40 conferring upon the Collector of the district powers to examine as to whether an instrument sent to him under the provisions of Sections 33 or 38 is chargeable with duty, and if the Collector is of opinion that the instrument is duly stamped or is not chargeable with duty he shall certify by endorsement on the document that it is so duly stamped or that it is not so chargeable, as the case may be. It further provides that if the Collector is of the opinion that such an instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same together with penalty. Sub-section (2) provides that a certificate under Clause (a) of Sub-section (1)shall, for the purposes of this Act, be the conclusive proof of the matter stated therein. Section 45 makes provisions for the Chief Controlling Revenue Authority to receive application in writing made within one year from the date of payment of stamp-duty and penalty to reconsider the matter and the section empowers the chief Controlling Revenue Authority to pass an order for refund of such penalty wholly or in part. Sub-section (2) of the said section recites that if in the opinion of the Chief Controlling Revenue Authority stamp-duty in excess of that which is legally chargeable has been charged and paid under Section 35 or Section 40, such authority may, upon application made within three months of the order, refund the excess. The mose important section for our purpose is Section 57 which runs as follows : "57, (1) The Chief Controlling Revenue Authority may state any case referred to it under Section 56, Sub-section (2), or otherwise coming to its notice, and refer such case with its own opinion thereon : (a) if it arises in Part A State, to the High Court of that State. . . . . " section 56 (2) runs as follows: