B K THAPER Vs. VIJAY KUMAR

JUDGEMENT

(1.) THIS appeal under Letters Patent is directed against the judgment dated May 24, 1975 of the Honble Single Judge (Mufti Baha -ud -Din Farooqi J.) of this court dismissing the application of the defendants appellants dated May 19, 1975. Two applications one dated 19th May 1975 and the other dated 20th May 1975 were filed by the defendants 1 and 2 respectively before the learned Judge. Application dated May 20, 1975 sought the rejection of the plaint on the grounds mentioned therein with which we are not however concerned as that is not the subject matter of the appeal before us, the appeal against that order having been dismissed in limine by us. The subject matter of the present appeal before us is the application dated May 19, 1975. It was filed under sections 33/35 of the Jammu & Kashmir Stamp Act read with Order 13 Rule 3 of the Code of Civil Pr: The appellants prayed inter alia that the court may impound and declare the lease deed dated Sept; 1974 as inadmissible in evidence. The prayer was grounded on the plea that the lease deed was improperly stamped and therefore, could not be admitted in evidence. The learned Judge by his order under appeal dismissed the application and observed that the matter was covered by a preliminary issue and the court had already declined the prayer of the defendants to allow issue No. 4 being tried as a preliminary issue (vide Order dated April 21, 1975) and as the question sought to be raised in regard to the defect in stamping the lease deed was covered by the appropriate issue, therefore, it was hardly necessary to go into this question at this stage of the suit. The court further observed that it was also a case, which involved the examination of a latent defect which required extrinsic evidence to be recorded in order, to find out whether the document was or was not duly stamped. As regards the objection raised by the defendants -appellants that the plaintiffs would seek the admission of the instrument of lease in the course of their evidence and if the document is admitted in evidence and exhibited then their object would be frustrated as they would not be able to raise the objections subsequently in view of the provisions of Section 36 of the Stamp Act, the learned Judge observed that when such an occasion would arise and the document is produced during the course of evidence, the document could be received and exhibited tentatively and such tentative and provisional reception of the document would not amount to its admission within the meaning of Section 36 of the Stamp Act. In the view of the learned Judge it was therefore, neither legal nor proper to decide the question of the admissibility of the document forthwith or even allow the question to be tried as a preliminary issue. He consequently dismissed the application.

(2.) AGGRIEVED by this judgment, the defendants have come up in appeal before this Court.

(3.) VERY lengthy arguments were addressed at the bar in order to sustain the respective stands taken by the parties in the appeal.