Bhima Rao Dattaka vs Channappa Basavantappa Kalasur and Another

This revision is preferred against the order dated 23-7-1987. The facts leading to the instant revision briefly stated are as under:

The petitioner/plaintiff has filed O.S. No. 32/1986 in the Court of Munsiff, Haveri, praying for a decree for specific performance on the basis of an agreement dated 5-4-1972 purported to have been executed by the respondents/defendants in his favour. The said agreement, however, was on a plain paper. In other words, it was not duly stamped as required under the law. He, therefore, filed an application on 12-6-1987 praying that he be allowed to pay the stamp duty and penalty as provided for under Section 34-A of the Karnataka Stamp Act, 1957 (hereinafter referred to as ''the Act''). His application, however, was resisted by the other side. Among other things, it was contended by the respondents that the agreement in question is illegal and concocted. It was further contended that even otherwise it required registration, inasmuch as the same purports to extinguishing the rights created under the sale deed executed by the plaintiff in respect of the same property. On these grounds in pith and substance they contended that the application be dismissed.

The learned Munsiff, on a consideration of the submissions made at the Bar and for the reasons reflected in his order dated 23-7-1987, dismissed the application field by the plaintiff. Hence, the instant revision.

I have heard the arguments of the learned counsels representing the parties in this revision petition.

It will have to be seen in the first instance as to whether the revision petition is not maintainable, as contended by the learned counsel for the respondents. The learned counsel for the respondents contended that the order in question would not fall within the purview of Section 115, CPC and that therefore the same is not revisable. In this connection reliance is placed on the decision in Gilbert Kaitan Pinto v. Mingei Juvaon Kervalho, 1972 MLJ SN Item 159. The learned counsel for the revision petitioner however submitted in this connection that the said decision is not applicable to the facts of this case. It was also argued by him that in the light of the amended provisions, particularly after the incorporation of an explanation to Section 115, CPC, a revision petition against an order like the one in hand, is maintainable.

It will have to be seen as to what are the facts leading to the observations made by this Court in Gilbert''s case. With that end in view, this Court had secured the original order passed in the said case and had the advantage of knowing the details. It will be indeed convenient to cull out the relevant paras in the said order. They are as follows:

"2. The said document reads as follows:

''I hereby pass a receipt to S.J.T. Gilbert Kaitan Pinto, that on 15-10-1967 till 8-1-1968 I have received Rs. 2,000/-. The previous Rs. 6,000/- and this amount of Rs. 2,000/-, thus total Rs. 8,000/- are received. Thus given the receipt.

Dated: 8-1-1968. Signature

Sd/- M.J. Kervalho''

When the petitioner wanted to tender that document into evidence, the respondent objected on the ground that it was insufficiently stamped and therefore it cannot be admitted. By the order dated 2-9-1971 the Munsiff directed the petitioner to pay the duty and penalty, but he expressly kept open the question of the admissibility for determination subsequently. Thereafter the respondent again objected despite the payment of duty and penalty, that the document in question could not be admitted into evidence. That objection was upheld by the Munsiff by the order under revision.

The Munsiff was of the opinion that the document in question is in the nature of an acknowledgement. Prima facie, the document appears to be a receipt. But the order dated 2-9-1971 is not before me, and therefore I cannot set aside that order.

By the order under revision, the Munsiff has interpreted in his own way, the proviso to Section 34 of the Stamp Act. That interpretation eventhough erroneous, cannot be said to have been vitiated by any error of jurisdiction. The revision against the said order therefore cannot be entertained.

Mr. Shirgurkar contended that his suit was mainly based on the disputed document and its exclusion from evidence would cause the petitioner great injustice. May be. I cannot help him. He is at liberty to produce other independent evidence for the proof of the payments. Besides, he can also question the correctness of the impugned order in an appeal against the final disposal of the suit".

A perusal of the observations made hereinabove would indicate that the facts in the said case are clearly distinguishable. That was a case where the Munsiff did allow the plaintiff to pay duty and penalty. Thereafter when objections were taken as to the admissibility of the document, the same was upheld. It was that order upholding the objection that was questioned in the revision. It was in that context that this Court has made the observations referred to in para 6 therein.

In the instant case, the very application praying for permission to pay the duty and penalty is rejected by the learned Munsiff. If the Munsiff had allowed the petitioner to pay the duty and penalty and had kept open the admissibility of the document to be determined at a later stage, it would have been another matter. The modus apparendi adopted by the Munsiff in the instant case, if allowed to continue, the document dated 5-11-1972 is likely to be shut out for ever in the light of Section 34 of the Act. Looked at from this point of view, I have no hesitation to hold that the observations made in Gilbert''s case has no application to the facts of this case.

Further, in a recent decision in Vijaya Bank Employees Housing Co-operative Society Ltd. v. C. Srinivasa Raju, ILR 1990 Karnataka 2451, a Division Bench of this Court has, among other things, held as under:

"13. The conditions or the restrictions imposed on the power of revision exercisable under Section 115 of the C.P. Code by a High Court can be stated thus:

1) No revision lies to High Court against a decree or order passed by a subordinate Court whether it decides the whole or part of the case, if an appeal lies against such decree or order either to High Court or to any Court subordinate to High Court.

2) A revisional power can be exercised against any decree or order passed by a Court subordinate to High Court if such a decree or order is not appealable and such decree or order is passed by a Court subordinate to High Court; and in passing such order or decree,- a) it has exercised the jurisdiction not vested in it by law; or b) has failed to exercise a jurisdiction vested in it by law; or c) has failed to exercise a jurisdiction illegally or with material irregularity.

3) Any order made by a Court subordinate to High Court including an order deciding an issue in the course of a suit or other proceedings, cannot be revised unless such an order or decision satisfies any one of the following further two conditions:

i) If such an order has been made in favour of the revision petitioner the suit or other proceeding would have been finally disposed of; or ii) If such an order is allowed to stand, it would likely to occasion a failure of justice or cause an irreparable injury to the party against whom it is made. Thus, the revisional jurisdiction can be exercised against an order or decree passed by a Court subordinate to High Court, whether it be of interlocutory nature or has finally decided the suit or proceeding whether in part or in its entirety, provided further that it satisfies the conditions referred to above, as the case may be. We shall not understood as laying down the proposition that every interlocutory order passed in a suit or proceeding is revisable or a revision petition can be maintained. This aspect will be considered a little later. Whether an order passed by a subordinate Court amounts to a ''case decided'' or not had been the subject matter of discussion by the various High Courts and it led to several conflicting decisions also. It also added to prolongation of proceeding before the Court below. Therefore, the Law Commission of India in its 54th Report went to the extent of recommending for deletion of Section 115, CPC itself. The Law Commission was of the view that adequate remedy is provided for in Article 227 of the Constitution to correct cases of excess of jurisdiction or non-exercise of jurisdiction or illegality or material irregularity in the exercise of jurisdiction; so, Section 115 is no longer necessary to be retained. However, the Joint Committee of the Parliament did not agree with the Law Commission. The Joint Committee of the Parliament observed thus:

''The Committee, however, feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in Section 115 is on the other hand, cheap and easy. The Committee, therefore, feel that Section 115 which serves a useful purpose, need not be altogether omitted particularly on the ground that an alternative remedy is available under Article 227 of the Constitution''.

The Joint Committee therefore recommended for additions to the restrictions contained in Section 115. Consequently, the original Section 115 came to be numbered as sub-section (1) and a new proviso to sub-section (1) and a new sub-section (2) and an Explanation thereto came to be added by Central Act 104/1976. The Explanation was specifically added to define the expression ''case decided'' in order to avoid controversy and lengthy arguments being advanced as to what is meant by ''case decided''. The expression ''any case which has been decided'' was explained to remove the doubt and to set at rest the controversy as to whether Section 115 applies to an interlocutory order. Thus by reason of addition of the Explanation to Section 115 of the C.P. Code, it cannot now be doubled nor any arguments can be entertained.............................."

I am indeed of the view that the instant revision stands the test of the observations made hereinabove in the aforesaid case. Under these circumstances, the contention raised by the learned counsel for the respondents that the revision petition is not maintainable, has no force.

The next point for consideration is as to whether the learned Munsiff has erred in rejecting the application of the plaintiff praying for allowing him to pay the duty and penalty. It is seen that the learned Munsiff has gone into the question as to whether the document in question is otherwise admissible in evidence and taking the view that it is not otherwise admissible, rejected the application of the plaintiff praying for permission to pay the duly and penalty. The approach of the learned Munsiff is not proper. What the learned Munsiff ought to have done was to allow the plaintiff to pay the duty and penalty and should have kept open the admissibility of the document in evidence to be determined at the appropriate stage.

Learned counsel for the respondents however contended that the proviso to Section 34 of the Act would apply only to those documents which are insufficiently stamped and would not apply to a document which is not stamped at all. Section 34 of the Act reads as under:

"34. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped;

Provided that- (a) any such instrument not being an instrument chargeable with a duty not exceeding fifteen paise only, or a mortgage of crop (Article 35(a) of the Schedule) chargeable under clauses (a) and (b) of Section 3 with a duty of twenty-five paise shall subject to all just exceptions, be admitted in evidence on payment of the duly with which, the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

(b)

(c) xxx xxx xxx (d)

In the context of the expression "insufficiently stamped" in the proviso to Section 34 of the Act, it is clear that the said expression will have to be construed as being applicable to documents also not stamped at all. In this view of the matter, I do not find any force in the submission made by the learned counsel for the respondents. Further, as pointed out by this Court Pushpa M. v. State of Karnataka & Others, 1987(1) KLJ 77, if a document insufficiently stamped is produced before a Court, it can be admitted in evidence if the party concerned pays the penalty at the rate provided in the proviso.

For the reasons hereinabove stated, I am indeed of the view that the order questioned in the revision is liable to be set aside.

It is hereby ordered that the order dated 23-7-1987 passed by the Munsiff & JMFC, Haveri, in O.S. No. 32/1986 on the application filed by the plaintiff is set aside. The lower Court is directed to allow the plaintiff to pay duty and penalty with reference to the document dated 5-4-1972. However, it is made clear that the question as to whether the document dated 5-4-1972 is not admissible on any other ground, is kept open to be determined by the trial Court at the appropriate stage.