Madras High Court
R.B.K. Rajeswari Nachiar vs N.N.S.A. Mohamed Kasim on 29 November, 2006
Equivalent citations: AIR 2007 MADRAS 155, 2007 (4) AKAR (NOC) 432 (MAD), 2007 A I H C (NOC) 387 (MAD), (2007) 53 ALLINDCAS 504 (MAD), (2007) 1 CTC 653 (MAD)
ORDER K. Venkataraman, J.
1. C.R.P. (PD) No. 472 of 2006:
This Civil Revision Petition is directed against the order of the learned District Munsif incharge/Judicial Magistrate No. 1, Ramanathapuram dated 25-4-2006 made in L.A. No. 75 of 2006 in O.S. No. 24 of 2005.
C.R.P. (PD) No. 473 of 2006:
1A. This Civil Revision Petition is directed against the order of the learned District Munsif incharge/Judicial Magistrate No. 1, Ramanathapuram dated 25-4-2006 made in L.A. No. 76 of 2006 in O.S. No. 24 of 2005.
2. The petitioner in both the Civil Revision Petitions is the plaintiff in O.S. No. 24 of 2005 and the respondent herein is the first defendant in the said suit. The petitioner has filed the Suit in O.S. No. 24 of 2005 on the file of the District Munsif, Ramanathapuram for declaration of her title in respect of the suit property, for permanent injunction restraining the defendants in the said suit from interfering with her peaceful possession and enjoyment of the suit property, and for costs. The respondent herein has filed a detailed written statement to the said Plaint. The matter was posted for trial on 3-11-2005. The plaintiff was examined as P.W. 1 on 27-12-2005 and the matter has been posted on 28-12-2005 for cross-examination of P.W. 1. Again for cross-examination of P.W. 1, the matter, was adjourned to 3-1-2006. On 3-1-2006, on behalf of the first defendant in the said Suit, namely, the respondent herein, three petitions have been filed (a) To accept one S. Bismillah Khan as Power Agent of the respondent (b) To defer the further proceedings in O.S. No. 24 of 2005 (c) To reopen L.A. No. 308 of 2005 filed for appointment of Commissioner. On 4-1-2006, all the petitions were returned and the Suit was posted to 5-1-2006. On 5-1-2006, the second defendant was given up by the petitioner -herein/plaintiff and the suit was decreed ex parte against the first defendant alone, who is the respondent herein. On 30-1-2006, L.A. No. 75 of 2006 has been filed to accept. Bismillah Khan as power agent of the defendant and L.A. No. 76 of 2006 was filed to set aside the ex parte decree. The respondent earlier has come forward with a Civil Revision Petition in C.R.P. (NPD) No. 166 of 2006 praying for a direction to dispose of L.A. No. 76 of 2006 within a time frame fixed by this Court. The same has been ordered by this Court on 3-3-2006 directing the Court before to dispose of L.A. No. 76 of 2006 within eight weeks. Thereafter, the respondent has filed another Civil Revision Petition in C.R.P. (NPD) No. 263 of 2006 praying for a direction directing the Court below to dispose of L.A. No. 75 of 2006 also along with L.A. No. 76 of 2006. This Court directed the Court below to dispose of both the I.As. Thereafter, both the Applications have been allowed by the Court below and the present revisions are directed against those orders.
3. Mr. R.S. Ramanathan, learned Counsel appearing for the petitioner, has contended that the Court below has erroneously allowed the application without appreciating the facts and the law involved thereon. He has further contended that the earlier Application in L.A. No. 75 of 2006 has been filed on behalf of the respondent to accept the said Bismillah Khan as power agent of the respondent and the same has been returned by the Court below and hence, another Application on the same set of facts to recognise the said S. Bismillah Khan as power agent is hit by res judicata. The learned Counsel has further submitted that the power of attorney cannot be accepted since the power has been executed at Malaysia by the respondent. The power should have been certified by the Collector within three months from the date of execution as contemplated under the provisions of the Indian Stamp Act, 1899 (hereinafter referred to as "the said Act"). Since it has not been certified as contemplated under the provisions of the said Act, the power of attorney said to have been executed by respondent at Malaysia cannot be acted upon. In this connection, learned Counsel for the petitioner has drawn my attention to Section 18 of the said Act which reads as follows:
18. Instruments other than bills and notes executed out of India.
(1) Every instrument chargeable with duty executed only out of India, and not being a bill of exchange or promissory note, may be stamped within three months after it has been first received in India.
(2) Where any such instrument cannot, with reference to the description of stamp prescribed therefor, be duly stamped by a private person, it may be taken within the said period of three months to the Collector, who shall stamp the same, in such manner as the State Government may by rule prescribe, with a stamp of such value as the person, so taking such instrument may require and pay for.
4. By referring to the said provisions, the learned Counsel for the petitioner has vehemently contended that if an instrument has been executed outside India, the same should be certified by the Collector, who will determine the stamp duty payable and such instrument has to be brought before the Collector for certificate within three months from the date of such execution. Thus, the sum and substance of the argument of the learned Counsel for the petitioner is that since the power of attorney was executed outside India, that is, at Malaysia, the same should have been certified by the Collector and the failure to do so will disentitle the respondent from producing the said power of attorney before the Court below and the Court below ought not to have relied upon the said power of attorney. The learned Counsel has further submitted that no valid reason has been assigned by the respondent for his absence on the hearing date, when the matter has been posted for cross-examination of P.W. 1.
5. Per contra, Mr. K. Srinivasan, the learned Counsel appearing for the respondent, has contended that the original power of attorney has been filed in some other proceedings before some other Court and the certified copy has been filed in the present proceedings before the Court below which cannot be said to be invalid. The learned Counsel has further submitted that the power of attorney was executed in Indian stamp papers as Malaysia before a Notary Public at Malaysia and hence, the same cannot be said to be improper. The certification before the Collector is not at all necessary. Further, the learned Counsel for the respondent, has submitted that the power of attorney has been executed in necessary Indian stamp papers and hence, it does not require any certification by the Collector. Since an Application permitting the power of attorney holder to defend the case was filed on 3-1-2006 and the same has been returned, P.W. 1 could not be cross-examined on 4-1-2006 on the date on which the matter was posted for cross-examination of P.W. 1. Meanwhile, the petitioner being the plaintiff in the said suit has given up the second defendant and the Suit has been decreed ex parte on 5-1-2006. Thereafter, the respondent herein has filed the Applications referred to above and the Court below has rightly allowed the said Applications. The learned Counsel for the respondent has further submitted that in the counter to the Application in L.A. No. 75 of 2006, the petitioner herein has not raised any objection about the validity of the power of attorney as put forth by the counsel for the petitioner now before this Court.
6. I have heard the learned Counsel for both the petitioner and the respondent.
7. The first limb of the argument of the learned Counsel for the petitioner that the present application is hit by res judicata cannot be accepted. The earlier application filed by the respondent to recognise one Bismillah Khan as power agent was returned by the Court below without passing any orders. The return of such Application cannot at all be considered as an order passed in the said Application. If no order has been passed in the said Application, the question of res judicata will not at all arise. Hence, I am unable to subscribe my view to the argument of the learned Counsel for the petitioner that the Application in LA. No. 75 of 2006 is hit by res judicata.
8. The second limb of the argument of the learned Counsel for the petitioner is that since the power of attorney was executed at Malaysia, which has not been certified by the Collector as provided under Section 32 of the Act, it cannot be relied upon and the same has to be rejected in toto. The power of attorney executed at Malaysia, but engrossed an Indian Non-Judicial stamp paper need not be produced before the Collector for certification since full stamp duty has been paid. The said document is admissible. The opening words in Section 32 of the Act clearly states "when an instrument brought to the Collector under Section 31 is...."Therefore if Section 32 of the Act has to be applied, then the instrument should have necessarily been produced under Section 31 of the Act before the Collector concerned. If the instrument is not produced before the Collector, the Collector does not get any Jurisdiction at all to go into the question of whether proper stamp duty has been paid under the Act or not. The production of the document before the Collector is not at all mandatory.
9. Further, since the power of attorney itself was already written in Indian stamp papers, it cannot be said that the failure to produce before the Collector within three months can be a ground to hold that it will disentitle the party from acting on the basis of such power. Further, the admissibility of the instrument not duly stamped is dealt with under Section 35 of the Act. Improperly stamped instrument excepting the categories mentioned in Clause (a) of Section 35 shall be admitted in evidence on payment of duty with which the same is chargeable with a penalty. The power of attorney is not the one of the categories of the documents mentioned in Section 35(a) of the Act. Hence, even assuming that the power of attorney is not duly stamped, the said document is admissible.
10. In this connection, the learned Counsel for the respondent has brought to my notice the judgment reported in Manoharan v. Velu 1998 (3) MLJ 272 wherein the Principal Seat of Madras High Court while dealing with a similar case has held as follows ;
5. This power document satisfies the definition 'power of attorney' as defined in Sub-section (21) of Section 2 of the Act. It is not in dispute that this power document is engrossed on Indian Non-Judicial stamp paper of the value of Rs. 5, which is the proper stamp duty, payable on that instrument. On these facts, the question that arises for consideration is whether the said power document should be necessarily produced before the Collector to certify by endorsement on such instrument that the full duty with which it is chargeable has been paid or not. To decide this question, the Court has to necessarily look into Sections 31 and 32 of the Act. Section 32 of the Act starts with the following words, "When an instrument brought to the Collector under Section 31, is etc. etc." Therefore, if the provisions of Section 32 of the Act have to be applied, then the instrument should have been necessarily produced under the provisions of Section 31 of the Act before the Collector concerned, Section 31 of the Act enable a person bringing to the Collector any instrument whether executed or not and whether previously stamped or not, to have his opinion as to the duty (if any) with which it is chargeable and thereupon the Collector on payment of a fee, shall determine the duty (if any) with which, in his judgment the instrument is chargeable. Sub-section (2) of Section 31 of the Act deals with the power of the Collector to collect materials, in order to determine the stamp duty, if any, chargeable on the instrument produced before him. Therefore, it is clear that only in a case where the opinion of the Collector is sought for regarding the payment of the proper stamp duty, the Collector gets the power to proceed in accordance with Section 31 of the Act. Once the Collector gets the jurisdiction under Section 31 of the Act in the manner I have stated above, then only Section 32 of the Act gets attracted.
6. Since in this case, the instrument has been charged with proper stamp duty payable under the Act and since it has not been produced by the power of Attorney Agent of the deceased second plaintiff before the Collector, the Collector does not get any jurisdiction at all to go into that question. The argument the learned Counsel for the respondents that the requirement of producing such an instrument before the Collector is mandatory, (where the instrument had been executed outside India) cannot be sustained. The Proviso to the main Section of the Act cannot alter the scope of the very Section itself. To attract Clause (b) of the Proviso to Sub-section (3) of Section 32 of the Act necessarily the document whether it is executed in India or outside India should have been produced before the Collector under Section 31(1) of the Act. So long as the document was not produced before the Collector, under Section 31(1) of the Act seeking his opinion on proper stamp duty chargeable, there is no question of relying upon or referring to the Proviso to Sub-section (3) of Section 32 of the Act." ' Finally, in the said Judgment, the learned Judge has concluded as follows:
Since in this case, the Instrument produced before the Court has suffered stamp duty chargeable on it, there is no question of either impounding it under Section 33 of the Act or collecting any amount, as provided for under Clause (a) of the Proviso to Section 35 of the, Act. Therefore, I have no hesitation to hold that the order under challenge is illegal and it has to be set aside and accordingly it is set aside.
11. The learned Counsel for the respondent has further brought to my notice the decision of this Court reported in M. Vairavan v. R.V. Periannan Chettlar 2006 (3) CTC 486 wherein it has been held as follows:
The Application filed at the stage of arguments to permit one of the plaintiffs to act as Power Agent of the other plaintiffs. No permission was sought for at the time of institution of the Suit. The defect is curable. Such an Application can be filed at the final stages of the Suit and there was, nothing improper for the Trial Court to allow the same when there was ho prejudice caused to the defendant.
12. While the position of law is very clear on this aspect, I am constrained to reject the arguments of the learned Counsel for the petitioner and uphold the contentions raised by the learned Counsel for the respondent. In the result, I find no illegality in the order dated 25-4-2006 of the learned District Munsif Incharge/Judlcial Magistrate No. 1, Ramanathapuram made, in LA No. 75 of 2006 in O.S. No. 24 of 2005 permitting S. Bismillah Khan as power agent of the respondent, herein and hence, the same is hereby confirmed. Therefore, the Civil Revision Petition in C.R.P. (PD) No. 472 of 2006 is liable to be dismissed.
13. As for as LA No. 76 of 2006 in O.S. No. 24 of 2005 is concerned, the said application has been filed to set aside the ex parte decree. As observed by me earlier, on 27-12-2005 P.W. 1 was examined and the matter was posted to 28-12-2005 for cross-examination of P.W. 1. Later the same was posted to 3-1-2006 for the very same purpose. On 3-1-2006, the respondent has filed the Application to accept S. Bismillah Khan as power agent of the defendant in the said suit. The said application has been returned along with other application on 4-1 -2006 and the mailer has been adjourned to 5-1 -2006. On 5-1-2006 the second defendant in the said suit has been given up and an ex parte decree has been filed against the first defendant alone, who is the respondent herein. On 5-1-2006, it is reported that the Advocates were on boycott and further more, the power of agent could not make himself available ready in view of the fact that the Application to accept him as power agent has been returned by the Court below. Furthermore, the respondent/first defendant was at Malaysia on 5-1-2006. The above said facts would clearly establish that, there are sufficient grounds for the non-appearance of the respondent before the Court below, when the matter was posted for cross-examination of P.W. 1. The Court below has taken all the factors into consideration while allowing the application to set aside the ex parte decree. Therefore, I do not find any error of Jurisdiction or miscarriage of Justice in the said order.
14. Hence, I am constrained to hold that the order of the learned District Munsif incharge/Judlcial Magistrate No. 1, Ramanathapuram dated 25-4-2006 made in LA No. 76 of 2006 in O.S. No. 17 of 2005 is perfectly in order, which does not require any reconsideration and therefore, the said order is hereby confirmed.
15. In the result, both the Civil Revision Petitions are dismissed. Consequently, C.M.P. No. 1 of 2006 is closed. However,there is no order as to costs.