R D SETHNA Vs. MIRZA MAHOMED SHIRAZI (NO1)

JUDGEMENT

(1.) It will be convenient to descend from the general to the particular. As to the arguments founded on the maxim omnia prcesumuntur etc., it is to be observed that so far it cannot be said with certainty that there has been any spoliation. Should the explanation offered by the defendant prevail, it might be difficult for the plaintiff to rest anything on this ground. But taking it for the moment to be as the plaintiff alleges, nothing material to the present purpose follows. The English Courts have gone a great way notably in such cases as Anneelsy v. Anglesea and Wardour V/s. Beresford : but in this case there is really no room for any presumption at all. I mean of course upon any fact relating to the stamp objection. Asking the Court to presume, (d) that the papers were stamped or (b) that they contained matter which might have refuted the objections, is asking the Court to presume that which, it knows, as far as in these circumstances it is safe to say that anything can be certainly known, is not true. The official translations, the photographs, the record of the suit in which the missing papers were produced, put it beyond all fair argument that they were not stamped and that as to their contents, where we have had the official translations we have exactly what we should have had they not been destroyed. To ask the Court to presume then anything to the contrary would be to bring the law into ridicule and carry a salutary principle to the length of absurdity.

(2.) Next of the argument founded upon the ordinary canons of interpretation, referable generally to the maxim ut magia valeat etc. and the like. That is well enough and I entirely agree that effect should be given to the maxim in any difficulty under the Stamp Act, so that where there is a reasonable doubt whether a paper is subject to stamp at all, the Courts should decide strictly against the Exchequer and beneficently in favour of the subject. The principle loses force where the question is not so much whether a paper is liable to stamp, as whether it is liable to stamp in one character or another and it has no application at all, where the words of the statute directly cover the case. The degree of doubt whether they do or not, brings us back to the first or second position, but no further. And in strictness Courts ought not to have any doubt whether a paper is of a denominated kind, such as, e. g. a promissory note. It either is or it is not. It seems to me that the sphere within which this maxim can be usefully applied under the stamp law is limited to cases of general expression, rather than to such a point as I am now to consider.

(3.) One other trifling question, which was, however, frequently raised and reverted to, may be summarily dismissed. Stamp objections are the care of the Court and when they are raised it is for the Court to decide whether they ought to be sustained, without any regard to the ground, as being the sole and only possible ground, upon which the objection may have been taken. If the Court should hold that for any reason there: is a good stamp objection, it matters not in the least, whether this stands upon ground taken by counsel, or not. Whether counsel hit upon the right reason or not is of no importance, provided there is a right reason.