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2008 DIGILAW 184 (KAR)

G. K. S. Shankar v. Puttarevamma

2008-03-14

H.G.RAMESH

body2008
ORDER Ramesh, J This writ petition by the plaintiff is directed against an interlocutory order dated 23.1.2008 passed by the trial court - the Court of the Principal Civil Judge (Jr.Dn)., Kunigal in the suit in O.S. No. 25712006. By the impugned order, the Trial Court has allowed the application filed by the defendants under Order XIII rule 8 of the Code of Civil Procedure (‘the CPC’) for impounding of the document dated 06-11-2004 (not admitted in evidence) on the ground that it does not bear the proper stamp duty; it has also dismissed the plaintiff’s application filed for return of the said document. 2. I have heard Smt Prathima Suresh, Learned Counsel for the petitioner and Sri B .N. Shivarma, Learned Counsel for the respondent and perused the impugned order at Annexure-G. 3. It is not in dispute that the document dated 06.11.2004 referred to above does not bear the proper stamp duty. To examine as to whether such a document is liable to be impounded, it is relevant to refer to Section 33 of the Karnataka Stamp Act, 1957 (‘the Stamp Act’) which reads as follows: 33. Examination and impounding of instruments.- (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law force in the State of Karnataka when such instrument was executed or first executed: provided that- (a) Nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think it so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in case of a Judge of the High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf (3) For the purpose of this section, in cases of doubt, the Government may determine (a) What offices shall be deemed to be public offices; and (b) Who shall be deemed to be persons in charge of public offices. In view of sub-Section (1) of Section 33 of the Stamp Act referred to above, impounding of the document which is not duly stamped cannot be found fault with. 4. The other part of the impugned order relates to rejection 0 the prayer of the petitioner/plaintiff for return of the aforesaid document not admitted in evidence. In this context, it is relevant to refer to Order XIII Rule 7 of the CPC: . 7. Recording of admitted and return of rejected document.- (1) Every document which has been admitted in evidence, or a copy thereof where a copy has been substituted for the original under Rule 5, shall form part of the record of the suit. (2) Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them Though Order XIII Rule 7 (2) of the CPC referred to above provides for return of documents not admitted in evidence, Chapter IV of the Stamp Act overrides the said provision inasmuch as a special enactment overrides a general enactment. Having regard to the provisions in Chapter IV of the Stamp Act, it is not permissible for the Court or any other authority conferred with the power to impound documents under Section 33(1) of the Stamp Act, to return any document not duly stamped till it is dealt with as provided under Chapter IV of the Stamp Act. However, this shall be subject to the exception provided under clause (a) of the proviso to sub-Section (2) of Section 33 of the Stamp Act. 5. For the reasons stated above, I find no illegality in the impugned order to warrant interference under the extraordinary jurisdiction of this Court under Article 226 & 227 of the Constitution of India. However, the document impounded under the order impugned herein shall be dealt with as provided under Chapter IV of the Stamp Act. Petition dismissed.