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2005 DIGILAW 10 (JK)

Mohd. Maqbool Mir v. Ali Mohd. Ganai

2005-02-07

HAKIM IMTIYAZ HUSSAIN

body2005
1. This Civil 1st. Appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 20.05.2004 passed by the District Judge, Pulwama in a suit No. 43 N of 2002 titled Ali Mohd. Ganai v. Mohammad Maqbool Mir. 2. Ali Mohammad Ganai S/o Muma Ganai R/o Pattan Pulwama filed a suit against Mohammad Maqbool Mir S/o Ab. Rehman Mir R/O Ratnipora, Pulwama under Order 37 CPC for recovery of money amounting to Rs. 1,30,000/- The court conducted proceedings under order 37 and on conclusion of the trial the court by means of the impugned judgment decreed the suit. The court found the plaintiff entitled to an amount of Rs. 1,30,000/- with interest @ 6% per annum alongwith costs of the suit. The following decree sheet was passed in the case on 20.05.2004:- "The suit of the plaintiff is decreed. The plaintiff is entitled to an amount of Rs. 1,30,000/- with interest at the rate of 6% per annum alongwith costs of the suit. File be consigned to records after its due completion." 3. It is against this judgment and decree that the present appeal has been filed and the only ground raised both in the memorandum of appeal and before this Court by the learned counsel for the appellant is that the document -- pronote on the basis of which the plaintiff has filed the suit is not legally admissible in evidence as it contravenes the provisions of the Stamp Act. It is submitted that the learned District Judge has ignored the settled position of law and has admitted a document in evidence and based its judgment on it without proper application of mind. 4. Heard. Considered. The pronote on the basis of which the plaintiff Ali Mohd. Ganai filed the suit under Order 37 is on the trial courts file. It is written on a stamp paper of Rs. 2/-. It consists of two leaves. The agreement has been written by Mohammad. Maqbool Mir S/o Abdul Rehman Mir R/o Ratnipora, on the first page of the stamp paper while as the second one has been duly annexed with it. The thumb impressions and signatures of the parties and witnesses appear on the first page of the document. The document also bears the seal and signature of the scribe -- petition writer Mir Gulam Mohammad. The thumb impressions and signatures of the parties and witnesses appear on the first page of the document. The document also bears the seal and signature of the scribe -- petition writer Mir Gulam Mohammad. The document has been duly exhibited by the trial court and has been relied upon while passing the decree. 5. The grievance of the appellant is that under Section 13 of the Jammu and Kashmir Stamp Act (for short the Act) every instrument written on a stamp paper bearing impressed stamps is to be written in such a manner that some part of the writing shall as far as possible appear on other leaves of the stamp paper so as to leave as few blank sheets as possible. According to the learned counsel an instrument which is not written in accordance with the provisions of Section 13 of the Act is to be deemed as unstamped under Section 15 and under Section 35 such a document is inadmissible in evidence. Section 13 of the Stamp Act provides as under: "Instruments stamped with impressed stamps how to be written: -- Every instrument written upon paper stamped with an impressed stamp shall be written in such a manner that the stamp may appear on the face of the instrument and cannot be used for or applied to any other instrument. Where a stamps duty payable in respect of an instrument is made of two or more papers stamped with impressed stamps, the instrument shall be written in such manner that some part of the writing shall, as for as possible, appear on each such paper so as to leave as few blank sheets as possible. Each blank sheet shall be dated and signed and shown as part of the instrument." Section 15 of the Stamp Act provides as under: "Instrument written contrary to section 13 and 14 deemed unstamped: -- Every instrument written in contravention of section 13 and 14 shall be deemed to be unstamped." Section 35 of the Stamp Act provides as under: "Instrument not duly stamped inadmissible in evidence. etc. 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 instrument chargeable with a duty of (ten paise) or a bill of exchange or promissory note, [or acknowledgement] shall, subject to all just exceptions, be admitted in evidence on payment of the duty 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 ten times the amount of the proper duty or if deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; The deficiency in duty and penalty payable under this section shall be realized in revenue stamps]; (b) where any purpose from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal procedure; (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act." 6. Under Section 13 of the Act every instrument which is required to be written on a stamp paper bearing impressed stamps is to be written in such a manner that the stamps appear on the face of the instrument. Under Section 13 of the Act every instrument which is required to be written on a stamp paper bearing impressed stamps is to be written in such a manner that the stamps appear on the face of the instrument. It is to be written in such a way that the stamps cannot be used for executing or placing with any other instrument. The purpose is obvious. By writing on the front page of the stamps paper there are no chances of misuse or reuse of the instrument. Under this section where a stamp duty payable in an instrument consists of two or more papers having impressed stamps the instrument is to be written in such a way that some part of the writing appears on other papers also so as to leave as few blank sheets as possible. If any blank sheet is left blank it shall be duly signed and dated shall be shown as part of the instrument. 7. In the present case we find that the document has duly written on the stamp paper bearing impressed stamp and it has been written in such a way that the stamp appear on the face of the instrument. The other document has been duly signed by the scribe and it is specifically mentioned that it shall be part of the instrument No. 89. The scribe has while executing the document specifically mentioned on the face of the first page that the document is numbered as 89. Thus there is sufficient and substantial compliance of Section 13 of the Act. 8. On a bare perusal of the document I find that there is sufficient compliance of Section 13 of the Stamp Act. Section 15 and 35 will come into play only when there is contravention of Section 13 of the Stamp Act. Since there is no contravention of the said section and the document is duly stamped in accordance with the provisions of Section 13 I do not find that the document is in any way inadmissible in evidence. 9. The result is that the present appeal fails and is dismissed. Order accordingly.