SEREEFA, D/O ALAVI; SUNITHA, D/O ALAVI; NOUSHAD, S/O ALAVI; RASHEED, S/O ALAVI v. MOIDEEN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933** ## **OPC.No. 3900 of 2011 (O)** **-----------------------I.A.278/2009 IN AS.62/2008 OF ADDITIONAL DISTRICT COURT, N. PARAVUR** **...............** ## **PETITIONERS/RESPONDENTS/APPELLANTS:** **-----------------------------------------------------------------** **1. SEREEFA, D/O.ALAVI, PANACHIKAPARAMBIL, VANIYAKAD,** **KIZHAKKEPRAM, KOTTUVALLY VILLAGE.** **2. SUNITHA, D/O.ALAVI, PANACHIKAPARAMBIL, VANIYAKAD,** **KIZHAKKEPRAM, KOTTUVALLY VILLAGE.** **3. NOUSHAD, S/O.ALAVI, PANACHIKAPARAMBIL, VANIYAKAD,** **KIZHAKKEPRAM, KOTTUVALLY VILLAGE.** **4. RASHEED, S/O.ALAVI, PANACHIKAPARAMBIL, VANIYAKAD,** **KIZHAKKEPRAM, KOTTUVALLY VILLAGE.** **BY ADV. SRI.P.K.SAJEEV** ## **RESPONDENT/PETITIONER/RESPONDENT:** **--------------------------------------------------------------** **MOIDEEN, S/O AMMU, KALARIPARAMBIL, VANIYAKKAD BHAGOM, KIZHAKKEPRAM KARA, KOTTUVALLY VILLAGE, NORTH PARAVOOR, P.O.MANNAM- 683 520.** **BY ADV. SRI.C.N.SAMEER.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **OPC.No. 3900 of 2011 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** |**EXTP1**|**COPY OF THE PLAINT IN O.S. NO.208/2003 ON THE FILES OF SUB COURT,**| |---|---| ||**NORTH PARAVOOR.**| |**EXTP2**|**COPY OF THE WRITTEN STATEMENT IN O.S. NO.208/2003.**| |**EXTP3**|**COPY OF THE EVIDENCE OF PW1 IN O.S. NO.208/2003.**| |**EXTP4**|**COPY OF THE EXT. A1 DOCUMENT MARKED IN O.S. NO.208/2003.**| |**EXTP5**|**COPY OF THE JUDGMENT DATED 30/11/2007 IN O.S. NO.208/2003.**| |**EXTP6**|**COPY OF THE APPEAL MEMORANDUM IN A.S.62/2008 ON THE FILES OF**| ||**ADDITIONAL DISTRICT COURT, NORTH PARAVOOR.**| |**EXTP7**|**COPY OF THE APPLICATION IN I.A. NO.278/2009 IN A.S.62/2008.**| |**EXTP8**|**COPY OF THE COUNTER AFFIDAVIT IN I.A. NO.278/2009 IN A.S.62/2008.**| |**EXTP9**|**COPY OF THE ORDER DATED 02/11/2011 IN I.A. NO.278/2009 IN**| ||**A.S. NO.62/2008.**| ## **RESPONDENT'S EXHIBITS:- NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **rs.** **'C.R'** **S.S.SATHEESACHANDRAN, J. ----------------------------------------------O.P.(C) No.3900 OF 2011 ------------------------------------------------------Dated this the 2[nd] day of February, 2012** ## **JUDGMENT** Challenge in the Original Petition is against the order passed by the learned Additional District Judge, North Paravur in I.A No.278/2009, in the appeal numbered as A.S No.62/2008 pending before him against the decree and judgment passed by the learned Munsiff, North Paravur in O.S No.208/2003, a suit for realisation of money. 2. The aforesaid application, I.A No.278/2009, was filed by the respondent in the appeal, who was the plaintiff before the court below. Suit for money was filed on the basis of an agreement executed by the defendants, who are the appellants in the above appeal. A contention was taken by the defendants that the document produced on which the suit claim was based is not an agreement, but, a bond. At the time of tendering of that document in evidence, the learned Munsiff marked that document in evidence subject to the objection canvassed by the defendants. Suit was disposed of by O.P.(C) No.3900/2011 2 passing Ext.P5 judgment decreeing the suit in favour of the plaintiff but with a direction that decree shall not be drafted till deficient stamp fee and penalty is paid on the document, which was found to be a bond and not an agreement. The direction was not taken note of and a decree in terms of the judgment was drafted, from which the defendants preferred the above appeal. The respondent/plaintiff receiving notice of the appeal moved the above I.A seeking permission to pay the deficit stamp duty and penalty. Overruling the objections raised thereto by the appellants/defendants, the learned District Judge allowed that application permitting the respondent/plaintiff to pay the deficit stamp duty and penalty. Propriety and correctness of that order (Ext.P9) is challenged in this Original Petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. 3. In the appeal preferred by the petitioners, who are defendants in the suit, against the decree and judgment rendered on an insufficiently stamped instrument, the learned District Judge was incompetent and, in fact, has acted without jurisdiction in entertaining the application of the respondent/plaintiff and allowing him to pay deficit stamp duty and penalty on the suit document, is the submission of the learned counsel for the petitioner. Reliance is placed on “Ahmad Khan v Munshi Faizul Haq” (189 IC 308) and “Champabaty v O.P.(C) No.3900/2011 3 Bibi Jibun and another” (1878 ILR(4) Calcutta 213) by the learned counsel to contend that the appellate court is incompetent to order the deficiency of stamp to be made good and where the amount of stamp duty and prescribed penalty were not tendered when the document was first tendered in evidence, in the appeal passed against the decree rendered in such suit or proceeding, no direction/order could be passed by the appellate court to pay the stamp duty with penalty on the instrument, according to the counsel. Reliance is also placed by the counsel in “Gulam Hussain v The Additional Rent Controller, Hyderabad and others” (AIR 1977 Andhra Pradesh 397) that, there could be no question of collecting the duty and penalty after admission of a document in evidence and the question of collecting the stamp duty and penalty after the admission is not contemplated under the Kerala Stamp Act, 1959 (for short, 'the Act'). So much so, where on the objection raised over the insufficiency of the stamp fee payment of deficit fee and penalty was ordered and without that being ordered the document was acted upon and a decree was passed on such instrument, in an appeal preferred by the aggrieved party thereto, the appellate court cannot pass any order for collecting the stamp duty and penalty on the instrument, is the submission of the counsel. O.P.(C) No.3900/2011 4 4. In the given facts of the case, what is to be noticed is that when a challenge was raised over the insufficiency of stamp on the instrument before admitting it in evidence at the trial stage, the learned Munsiff should have decided that question and the objection canvassed thereof court not have been relegated for consideration at a later stage. In the decision rendered by the apex court in “Bipin Shantilal Panchal v State of Gujarat and Another” (AIR 2001(1) SCC 1158), the apex court, while pointing out that determining the objections raised over the admissibility of documents tendered in evidence at that stage itself, which is commented upon as an archaic practice followed, has stated such determination is not warranted in all situations and after marking the documents subject to objections it can be considered at a later stage. However, so far as a challenge raised over the insufficiency of stamp duty payable on the instrument tendered, it has been cautioned, it requires to be considered before receiving such document in evidence and proceeding further. The interdiction under Section 34 of the Act also prohibits the court from receiving in evidence and acting upon an instrument chargeable with duty unless such instrument is duly stamped. So much so, it was improper on the part of the learned Munsiff to pass an order for marking the suit document in evidence relegating the question for consideration of its objection to a later stage. The trial court had O.P.(C) No.3900/2011 5 applied its mind on the objection raised over the sufficiency of stamp on the suit document only with other issues involved in the suit and that was decided under its judgment alone. However, the finding entered that the document was insufficiently stamped and stamp duty and penalty thereof to be paid as ordered under Ext.P1 judgment with direction that a decree shall not be drafted on the basis of such judgment, till deficiency is rectified with payment of penalty, which was not proper and correct, by no stretch of imagination can be held to be one passed without jurisdiction. It is only an improper exercise of jurisdiction not in accordance with the procedure applicable under the Stamp Act with respect to the admissibility of a document insufficiently stamped. Even an insufficiently stamped instrument if admitted by the court can be acted upon and relief be granted by passing any order or decree. So much so, there was an improper exercise of jurisdiction by the court in relation to the determination of the sufficiency of the stamp and directions issued how the decree has to be drafted after passing of the judgment, cannot be canvassed by one or the other party to contend that such order or decree is unsustainable. 5. The decisions relied by the counsel, viz, “Ahmad Khan v Munshi Faizul Haq” (189 IC 308), “Champabaty v Bibi Jibun and another” (1878 ILR(4) Calcutta 213) and “Gulam Hussain v The O.P.(C) No.3900/2011 6 Additional Rent Controller, Hyderabad and others” (AIR 1977 Andhra Pradesh 397) were rendered on totally different situations, and on questions of law which have no connection or parallel with the present case. In Ahmad Khan's case challenge was against an order of remand by the lower appellate court reversing the decree of dismissal of suit by the trial court. Suit was dismissed holding that the suit document was unstamped and, hence, not admissible, but, without providing an opportunity to the plaintiff to make good the deficiency in stamp fee with penalty. In appeal, the lower appellate court reversing the decree of dismissal remitted the case to provide an opportunity to the plaintiff to pay the deficit stamp fee and penalty noting that no opportunity was given to the plaintiff to do so by the trial court. Challenge against that remand order was repelled by the High Court of Bhopal in the above decision cited by the counsel holding that the lower appellate court has acted only in accordance with law. Observation made in the decision that the appellate court has acted correctly in remitting the case 'as it was not competent to pass an order directing payment of deficit stamp fee and penalty in that case', has been banked upon by the counsel to challenge the impugned order. Facts involved in the reported case would show that there was no order by the trial court to pay any deficit fee and penalty and it was in that context the above said observation was made, and it does not O.P.(C) No.3900/2011 7 lay down a proposition that the appellate court has no power to receive deficit stamp fee and penalty ordered by the trial court, but, not collected for one reason or another before admitting the document in evidence. In “Champabaty's case what has been considered and held is that when an unstamped document was tendered in evidence and rejected by the trial court, the appellate court has no authority to direct for reception of that unstamped document on payment of deficit stamp fee and penalty. That is also not the situation in the present case where document was marked and, in fact, received in evidence and acted upon, but, direction to make good deficit stamp fee and penalty was ordered only in the judgment disposing the case under which a decree upholding the suit claim was passed. The decision rendered in “Gulam Hussain's case the question considered was whether the penalty could be levied after impounding the document which was tendered in evidence, and that has no applicability to the facts of the present case where the fact situation is totally different. 6. Chapter IV of the Act covers the provisions applicable to instruments not duly stamped. Any instrument chargeable with duty, if tendered in a civil court or before any person having authority to receive evidence, except an officer of Police, if not properly stamped, is liable to be impounded, is the mandate under Section 33 of the Act. Any instrument chargeable with duty shall not be admitted in evidence O.P.(C) No.3900/2011 8 for any purpose by court or any person having authority to receive evidence, is the interdiction under Section 34 of the Act. The court has, however, power under proviso (a) of that Section to admit an instrument (baring certain instruments) in evidence on payment of duty with the instrument is chargeable or the amount required to make up the deficiency, together with penalty, limits of which are prescribed in the Section. When that be so, where the court has ordered for making good the deficiency in the document tendered, directing payment of the deficit stamp fee and penalty and, in fact, acted upon that document and passed a decree with some directions, but, without providing an opportunity to the applicant who tendered that document to pay the deficit stamp fee and penalty, and when such decree is challenged in appeal whether the appellate court has competency and authority to rectify and correct the irregularity committed by the court below, that too when a request is so made by the applicant who was denied opportunity by the trial court to make good the insufficiently stamped instrument paying the deficit stamp fee and penalty ordered, is the pivotal question to be considered in the case. I do not find any merit in the challenge canvassed by the counsel for the petitioner that once the trial court has committed an irregularity in the reception of a document without payment of the deficit stamp fee and penalty ordered, the appellate court before O.P.(C) No.3900/2011 9 which further proceedings of such case comes up for consideration is incompetent to pass appropriate orders for realisation of the deficit stamp fee and penalty. In the context it is appropriate to take note of Section 59 of the Act. The aforesaid Section makes it abundantly clear that where any order has been made by any court in exercise of its civil or revenue jurisdiction over the admitting of any instrument in evidence as duly stamped or as not requiring a stamp or upon payment of stamp duty or penalty under Section 34, the court to which appeals lie on its on motion or on the application of the Collector can examine the propriety and correctness of the orders so made and pass appropriate orders. Though sub Section (2) and (3) of the Section contemplate of the procedure to be followed by the appellate court in such a case and sub Section (4), the steps to be taken by the Collector pursuant to orders of the court over the document impounded and sent over, it cannot be contended or even assumed that when it is empowered under sub Section (1) of Section 59 to consider the correctness of the stamp duty and penalty payable over an instrument tendered in the case, it cannot pass an order directing collection of such amount over the instrument which had been already ordered by the trial court, but, for one reason or other omitted to be realised. The declaration to be made by the court after following the procedure under sub Section (2) of Section 59 even in the case O.P.(C) No.3900/2011 10 covered by sub Section (1) of Section 59 of the Act, it has been made clear under proviso (b) to sub Section (4) shall not affect the validity of any order admitting an instrument in evidence. When such be the case, where the document has already been admitted in evidence and acted upon by the trial court, as in the present case, but, without realising the deficit stamp fee and penalty ordered, the order of the learned District Judge allowing the request of the plaintiff in the suit, who was denied of an opportunity to pay the stamp duty and penalty, to make good the payment in appeal, is only just and proper as it has to be done to avoid miscarriage of justice. There is no legal inhibition interdicting the appellate court to grant permission to make good the deficit stamp fee and penalty already ordered over the instrument which was omitted to be realised. In the fact situation presented in the case the orders passed by the learned District Judge is proper and correct. 7. In the present case, it is also to be noted that the petitioner has not approached the trial court for correction by way of review the direction in the judgment, but on the basis of the decree drafted by the court on its judgment proceeded to prefer an appeal as provided by the Code of Civil Procedure. No doubt, it may be open to him to canvass whatever challenges available to him on the irregular and improper exercise of jurisdiction by the court in passing an order O.P.(C) No.3900/2011 11 directing drafting of the decree on an insufficiently stamped instrument and also upholding the claim on such an instrument in his appeal. But, where the plaintiff has been denied an opportunity to pay the stamp duty and penalty and the finding on the objection raised over his suit document was rendered only in the judgment by the trial court, it cannot be stated that the lower appellate court went wrong in any manner in allowing the application of the plaintiff to pay the deficit stamp duty and penalty payable on such instrument. The act of the court shall not cause prejudice to any parties to the lis. For the reason that a mistake had been committed by the trial court it cannot be stated that any indefeasible right had been passed over to the defendants in the suit. The document has already been admitted and acted upon by the trial court to base its finding in granting the reliefs under Ext.P5 judgment. That was done after taking note of the objections over the insufficiency of the stamp on such instrument, canvassed by the defendants. To receive such document in evidence, where it is found to be a bond, deficit stamp duty and penalty thereof required to be paid and that was not paid before the trial court by an order of that court, cannot be taken advantage by the defendant when the trial court has not directed the plaintiff to pay such deficit stamp duty and penalty providing an opportunity to do so. In such circumstance, when an appeal is preferred against the decree, request O.P.(C) No.3900/2011 12 made by the plaintiff seeking permission of the appellate court to pay the penalty and stamp duty, cannot at all be denied. I find no impropriety leave alone any illegality, in Ext.P9 order passed by the learned Additional District Judge permitting the respondent in the appeal/the plaintiff in the suit, to pay the deficit stamp duty and penalty payable on the suit document. Original Petition is dismissed. Sd/- vdv **S.S.SATHEESACHANDRAN, JUDGE** //True Copy// P.A to Judge