FIRM POONAM NAHTA Vs. AMARCHAND

JUDGEMENT

(1.) IN a suit filed by respondent no. 1 Amar Chand against non -petitioners no. 2 to 5 an order was passed by the trial court under Order 38 Rule 6 C.P.C. that the amount of M/s Krishna Bros. lying with the Central P.W.D. may be attached. Having felt aggrieved by that order the petitioner filed objection under Order 21 Rule 58 C.P.C. and submitted in support of this claim four documents dated 22.3.69, 30.4.69, 14.6.69 and 6.8.69. The plaintiff objected the admissibility of these instruments in evidence on the ground that they were not property stamped. An issue was framed by the trial court and after examining the documents the learned Judge held that the instruments dated 30.4.69 14.6.69 and 6.8.69 were bonds in respect of the amounts Rs. 39500/ - Rs. 11000/ -, and Rs. 31000/ - respectively and since they were not properly stamped they could not be admitted in evidence unless the stamp duty along with the penalty was paid by the petitioner. This order of the learned Additional District Judge dated 9.12.71 is impugned by the petitioner by filing this petition under articles 226 and 227 of the Constitution inter alia on the ground that all these three documents which contained terms of agreement tendered before the execution of the documents, were nothing more than the memorandum of agreement and as such no stamp duty was leviable on them In the alternative it is averred that at best these documents can be covered by the term 'agreement' and they should therefore, be governed by Article 5 of the Rajasthan Stamp Act (hereinafter referred to as 'Act') It is also urged that since the error committed by the learned District Judge is patent on the face of he record, his court must exercise its extra ordinary jurisdiction to undo justice that has been done to the petitioner by asking him to pay the stamp duty and the penalty which according to the petitioner runs in thousands. It was therefore, prayed that this Court may declare trial the documents Ex. A., Ex. B and Ex. C are memorandum of past transactions and not chargeable to any stamp duty or in the alternative they may be declared as agreements which are chargeable to stamp duty under Article 5 of schedule II of the Act.

(2.) MR . U.L. Gupta who has appeared on behalf of respondent no. 1 has argued that the petition under Article 226 and 227 is not maintainable as a revision application can be filed under Section 115 of the Code of Civil Procedure to challenge the impugned order of the learned Additional District Judge; and even if the revision is not maintainable the petitioner cannot invoke the extra ordinary jurisdiction of this Court as the error which is said to have been committed by the trial court, cannot be said to be an error patent on the face of the record. The learned Counsel also argued that the language of these documents clearly bring them within the term 'bond' as defined in Section 2(5)of the Act.

(3.) THE alternative argument of Mr. Gupta that the error which is said to have been committed by the learned trial Judge while passing the impugned order cannot be said to be an error patent on the face of the record as this error which is being pointed out by the learned Counsel for the petitioner cannot be discerned by the perusal of the order sheets. In support of this argument the learned Counsel relied on the observations of the learned Judges in Jaman Singh and Anr. v. The Board of Revenue and Ors. ILR (1960) 10 Raj. 1638. Perhaps the learned Counsel has advanced this argument on the basis of the head note wherein it has been mentioned that the error must be patent and manifest on a bare perusal of the order itself But when this authority is carefully perused then we find that the learned Judges while relying on a previous authority of this Court in Dholpur Coop T and M. Union v. Appellate Authority, Rajasthan ILR (1953) 3 Raj. 931 reproduced the observations of the learned Chief Justice which are as follows: