MOHD BHAT Vs. SHAMBU NATH

JUDGEMENT

(1.) THIS is a revision petition against the order of the Munsiff Anantnag dated 10 -9 -64 whereby he has held a certain document dated 1st January 1962, which is the subject matter of dispute between the parties, to be a sale deed and liable to stamp duty as such. The document bears an adhesive stamp of 10 NP. and has been termed as a receipt and Qabze Zar. It is against this order of holding this document to be a sale deed that the present revision petition has been presented by the plaintiff.

(2.) ON the basis of this document the plaintiff brought a suit for a permanent injunction that the defendant should not interfere with the possession of a Kothar situate in survey Nos. 155, 180, 179, 175 and 193 in village Brah Tehsil Anantnag. A preliminary objection was raised about the maintainability of this revision petition. The learned counsel for the respondents argued that the remedy of the petitioner was under S. 61 of the Stamp Act. This section lays down the law to the following effect : - When any court in the exercise of its civil jurisdiction.....makes any order admitting an instrument in evidence as duly stamped or as not requiring a stamp or upon payment of duty and a penalty under S. 35, the court to which appeals lie from, or references are made by, such first mentioned court may, of its own motion or on the application of the Collector, take such order into consideration."

(3.) SUB -S. (2) of this section lays down that if the court comes to the conclusion that the instrument should not be admitted into evidence without payment of duty and penalty or without payment of higher duty, it may record a declaration to that effect and determine the amount of duty with which such instrument is chargeable." This section refers to cases where some inferior court admits a document without recovering any penalty on it or does not recover that much of stamp duty and penalty which it should have. The object of this section is the protection of the Government revenue (See 7 1C 582). For this purpose it empowers an appellate court or a court of reference of its own motion or on the application of the Collector, to take into consideration the order of a subordinate court and to acertain whether the Government revenue has suffered and whether a higher duty and penalty than that required by the court of first instance ought to have been demanded from the person filing the instrument. (Vide ILR 12 Cal. 64). Obviously the grievance of the plaintiff petitioner here is that this document has been held liable to stamp duty and penalty which should not have been done. Therefore this section has no application to the facts of the present case. Besides there are authorities to hold that such an order is revisable. (See AIR 1957 J & K 49 and AIR 1961 A. P, 424). In my opinion therefore this revision petition is maintainable and S. 61 is no bar to the maintainability of this revision petition.