Andhra HC (Pre-Telangana)
Balaji Adithi vs Baddam Chandra Reddy on 16 February, 2004
Equivalent citations: 2004(2)ALD507, II(2004)BC533
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. Respondent filed O.S. No. 8 of 2002 on the file of the Senior Civil Judge, Nalgonda to recover certain amount from the petitioner. The trial of the suit is yet to commence.
2. The respondent filed I.A. No. 516 of 2003 under Order 13 Rule 8 of the Code of Civil Procedure (for short 'the Code') for impounding the document. According to him, the document is only a bond insufficiently stamped and not a promissory note. The petitioner resisted the application stating that the document answers the description of the promissory note and the question of collecting deficit stamp duty thereon does not arise. The Trial Court passed an order, dated 4-7-2003, treating the document as a bond/promissory note and permitted it to be impounded. The petitioner challenges the same.
3. Sri M. Venkat Ram Reddy, learned Counsel for the petitioner submits that the application filed by the respondent was not maintainable, since Order 13 Rule 8 of the Code does not deal with the impounding of document for collection of deficit stamp duty. According to him, the word "impounding" employed in Order 13 Rule 8 of the Code was misunderstood and the Trial Court had considered the application without verifying the implications. It is his further case that the Trial Court recorded a finding without undertaking any discussion and the same is untenable.
4. Sri A. Sudershan Reddy, learned Counsel for the respondent submits that reference to Order 13 Rule 8 of the Code was a mistake. According to him, this mistake is not fatal, inasmuch as the petitioner was clear in his application and the prayer, as is evident from the affidavit itself. He further submits that impounding of a document for the purpose of collection of deficit stamp duty is a matter between the Court and the person, who intends to rely upon the document and that no exception can be taken to the order under revision.
5. The contention of the learned Counsel for the petitioner that the Trial Court failed to maintain the distinction between the impounding of a document for the purpose of collecting deficit Court fee on the one hand and the impounding for the purpose of safe custody provided for under Order 13 Rule 8 of the Code is correct. A reading of the affidavit filed by the respondent in I.A. No. 516 of 2003 discloses that he wanted the document to be treated as a bond and not as a promissory note and he accordingly prayed for impounding of the document, dated 7-12-1998, after deciding its nature. Therefore, subject-matter of interlocutory application was determination of the nature and permissibility of the impounding of the document, for collection of deficit Court fee. The respondent filed the application under Order 13 Rule 8 of the Code. The said provision reads as under:
Court may order any document to be impounded :--Notwithstanding anything contained in Rule 5 or Rule 7 of this Order or in Rule 17 of Order 7, the Court may, if it sees sufficient cause, direct any document or book produced before it in any suit to be impounded and kept in the custody of an Officer of the Court, for such period and subject to such conditions as the Court thinks fit,
6. A reading of Order 13 Rule 8 of the Code discloses that the word "impounding" referred to therein is in the context of safe custody and has nothing to do either with the determination of the nature of the document or the collection of deficit Court fee thereon. Inasmuch as the term impounding is used in both the context, the respondent appears to have taken one provision for the other and the Trial Court, obviously under pressure of work did not take this aspect into account. The parameters for passing an order under Order 13 Rule 8 of the Code are totally different from those relating to determination of nature of document or collection of deficit stamp duty. Under this Rule, the Court has to consider as to how far the parties can be permitted to submit only a copy of document as distinguished from the document itself. In contrast, the determination of nature of the document for the purpose of collecting the deficit stamp duty is a different exercise.
7. One significant aspect of the matter is that though the respondent had cited a wrong provision, he was very clear as to his prayer and the facts pleaded by him. It is settled principle of Law that citation of a wrong provision by itself does not render the proceedings or consequential order invalid. Now, it needs to be seen as to how far the finding recorded by the Court below is correct.
8. No specific contention was raised with regard to the nature of provision before the Trial Court. The parties as well as the Court were clear about the subject-matter. While the respondent pleaded that the document is a bond, the petitioner emphasized that it answers the description of a promissory note. Ordinarily, these questions fall for consideration at the time of recording of the evidence. The Trial Court had taken the view that the document is in the nature of a bond/promissory note. Even while arriving at this conclusion, it did not undertake any discussion, much less, has referred to the contentions of the respective parties. The finding recorded by the Trial Court under these circumstances, cannot be treated as final. It is only when the respondent comes forward to exhibit this document in evidence, that the occasion would arise, to adjudicate upon the nature of the document.
9. The Trial Court had permitted the document to be impounded by collecting the deficit stamp duty. Normally, such a step is taken by the Court, at the instance of the party intending to impound the documents, without calling for the remarks of the other side. The reason is that mere payment of deficit stamp duty by itself does not improve the situation and it does not result in infringement of the rights of the other party. The affected party can raise the objections only as and when the document is sought to be marked in the evidence with or without payment of the deficit stamp duty.
10. Under these circumstances, the civil revision petition is disposed of directing that the order in I.A. No. 516 of 2003, dated 4-7-2003, cannot be treated as a pronouncement on the nature of the document and that it shall be open to the petitioner herein to raise objection as regards admissibility and nature of the document as and when it is sought to be marked in evidence. The Trial Court shall consider such objections without treating the observation made by it in the order dated 4-7-2003, in I.A. No. 516 of 2003 as final. The document may be sent for being impounded as directed by the Trial Court. This, however, shall be subject to the objection that may be raised by the petitioner as to its admissibility and nature, during the course of recording of evidence.
No costs.