MOHAN LAL Vs. SANSAR CHAND

JUDGEMENT

(1.) THIS revision petition, which has been referred to this Bench by the Honble Chief Justice, raises an interesting and important point of law viz. whether an appellate Court has authority to direct the reception of an instrument on tender of the deficiency in stamp duty and penalty.

(2.) IT appears that the petitioner brought a suit for possession of two rooms described in para 1 of the plaint in the Court of Munsiff, Sub -Registrar, Jammu, on July 17, 1968. In support of his claim the petitioner relied upon a rent deed (bearing one anna adhesive stamp) purporting to have been executed by Shri Baldev Singh, defendant No. 3, which he sought to prove by the statement of Majia Ram, PW, a marginal witness of the deed. Upon this an objection was raised by the learned counsel for the other side that the document was not admissible in evidence as it was not properly stamped. The trial Court, however, marked the document as EX.PA subject to the objection of the other side. This happened on August 6, 1969. The trial Court did not, however, decide the question regarding the inadmissibility in evidence of EX.PA on the ground of deficiency of stamp duty until March 2, 1970, when during the course of the final judgment dismissing the suit it observed: - "PW Majia Ram has stated that rent deed EX.PA was written in his presence; but this deed was admitted subject to the objection of the other side. This deed is supposed to have been executed by one Baldev Singh who has denied its execution. This deed is stated to be a Rent Deed; but it appears that no proper stamp has been affixed on this deed and only one anna stamp is purported to have been fixed on it. Unless and until deed is properly stamped, the document cannot be allowed as evidence." The Court did not, however, offer any opportunity to the petitioner to make good the deficiency in stamp duty. In the course of the appeal preferred by the petitioner before the Sub -Judge (C, J. M.) Jammu, against the aforesaid judgment of the trial Court, he filed an application expressing his willingness to make up the deficiency in stamp duty and praying that he be allowed to do so in terms of section 35 of the Stamp Act. The lower appellate Court rejected the application vide its order dated May 8, 1972, observing that as the petitioner "did not make such request before the Court below nor tendered the requisite amount for stamping the document, he was not within his right to pray for this concession in the appellate Court at such a late stage". Aggrieved by this order the plaintiff filed the above mentioned revision application, which as already stated, has been referred to this Bench by the Honble Chief Justice for an authoritative pronouncement.

(3.) APPEARING in support of the revision petition Mr. Sethi has urged that grave injustice has been caused to his client as no opportunity was allowed to him to tender the deficient duty and penalty and that the prayer for permission to make up the deficiency in stamp duty could be made under section 35 of the Stamp Act even at the appellate stage and the Sub -Judge (C. J. M.) was wrong in rejecting the application. Mr. Gupta has on the other side contended that the petitioner had ample opportunity to pay the proper stamp duty and penalty but he did not avail of the same and the application of the kind made by the petitioner could not properly and legitimately be made at the appellate stage.