Kerala High Court
Varghese vs State Of Kerala And Ors. on 28 November, 1988
Equivalent citations: AIR1989KER248, AIR 1989 KERALA 248, (1989) 1 KER LT 24, (1988) 2 KER LJ 864, (1989) 1 CURCC 157
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
ORDER K.G. Balakrishnan, J.
1. The revision-petitioner filed a suit for injunction against respondents 2 and 3. The suit related to the building which was under the occupation of the revision-petitioner as a tenant. At the time of presentation of the plaint, the plaint produced a rent-deed, The chief ministerial officer of the Munsiff's court noticed that the rent-deed was not properly stamped and a sum of Rs. 41,217/- was payable as stamp duty and penalty. The learned Munsiff thereafter made an endorsement on the document : "pay stamp duty and penalty. The suit was not pressed and the same was dismissed on 2-7-1984. The plaintiff filed an application for the return of the document. However, the document was not returned and the same was impounded by the learned Munsiff on 3-8-1984. The application to return the document was dismissed. Plaintiff filed I.A. No. 1943 of 1984 to review the order passed by the court impounding the document.
2. The short question that arises for consideration is whether the order of the learned Munsiff impounding the document on 3-8-1984 was correct. The learned counsel for the revision-petitioner Shri Section Ananthan-subramanian contended that the court had become functus officio and had no right to impound the document when the suit was already disposed of. The learned Government Pleader submitted that the document was produced by the plaintiff, therefore under Section 33 of the Stamp Act, the Court was justified in impounding the document.
3. The word "impound" is not defined in the Stamp Act. According to the Oxford Dictionary its meaning includes "to take legal or formal possession of and according to Chambers Dictionary it means; "to confine as in a pound, to restrain within limits, to take legal possession etc." In the instant case, the document was presented to the court along with the plaint and thereafter the suit was settled. The relevant section, Section 33, of the Stamp Act 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 in force in India when such instrument was executed or first executed :
Provided that -
(a) nothing herein contained shall be deemed require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit 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 (5 of 1898);
(b) in the case of a Judge of a 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 purposes of this section, in cases of doubt -
(a) the State Government may determine what offices shall be deemed to be public offices: and
(b) the State Government may determine who shall be deemed to be persons in charge of public offices".
4. A question of similar nature came up before the Division Bench of Calcutta High Court in Khetra Mohan Saha v. Jamini Kanta Dewan. AIR 1927 Cal 472 wherein it was held that if the suit has already been disposed of and decree signed and sealed, Section 35 of the Stamp Act was wholly inapplicable. In Paiku Kashinath v. Gaya, AIR 1949 Nagpur 214 his Lordship Justice Hidayatullah, as he then was, held that a court has no jurisdiction to reopen a case to impound a document after the decree is signed and to order the recovery of the stamp duty and penalty. The Supreme Court in Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 considered the question of impounding of the document. It was held : (at Pp. 1656-57) "Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed.................. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case, ...................... Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial Court itself or to a court of Appeal or revision to go behind that order."
A similar question arose in Puran Chand v. Emperor, AIR 1942 Lahore 257. The suit was for recovery of possession of certain properties. The defendant contended that he bought the properties from the original owner. Along with the written statement the defendant produced two receipts. The stamp auditor pointed out to the Sub Judge that one of the receipts amounted to a conveyance and therefore it was understamped. On 10th June, 1938 the Sub Judge ordered for the return of that document. But it was not taken off and remained on the record. In August 1938 the Sub Judge passed an order impounding the very same document and the document was sent to the Collector for realisation of stamp duty. But, by mistake a wrong receipt was sent for collection. The question arose whether the order of impounding passed after the order for the return of document was proper. The court was of the view that the impounding order was illegal. The Special Bench held (at p. 260) :
"When a Court orders a document to be returned because it is not proved it can no longer be considered to be part of the judicial record and cannot therefore properly come before the Court again in the performance of its functions, unless, of course by any chance, the order is reviewed and the document is allowed to be tendered again in evidence. But otherwise, it would remain in the custody of the Court after such order only for being returned to the party concerned."
5. From the various above decisions it is clear that the impounding of a document cannot be made after the court has become functus officio. If the document is merely presented along with the plaint, it cannot be said that document was produced as contemplated under Section 33 of the Stamp Act. If the plaintiff intended to use the document as an item of evidence, then only the court can consider that it was a document "produced" and the same can be impounded by the court. As it has been pointed out by the Supreme Court, the court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once the case is over and the decree was signed and sealed or when a document is ordered to be returned, it can no longer be considered to be part of the judicial record and cannot therefore properly come before the court again in the performance of its function and the court is not competent to impound the same.
6. In the instant case even though the chief ministerial officer noted that the document was insufficiently stamped, the order of impounding was passed only on 3-8-1984. The suit was dismissed on 2-7-1984. Therefore, the impounding made after the disposal of the suit on 3-8-1984 is illegal and the order passed by the Munsiff is not sustainable.
In the result, the order impounding the document is set aside and the document is directed to be returned to the" revision-petitioner. The civil revision petition is allowed. No costs.