S. RANGARAJU NAIDU Vs. D.S. KAMESAN
LAWS(MAD)-1952-11-22
HIGH COURT OF MADRAS
Decided on November 14,1952

S. Rangaraju Naidu Appellant
VERSUS
D.S. Kamesan Respondents

JUDGEMENT

Govinda Menon, J. - (1.) MR . N.S. Srinivasan appearing for the learned Government Pleader raises a preliminary objection that Section 115, Civil P. C. will not apply to the present case. What happened was that when a document came into the possession of the Court below a Question was raised as to whether it was properly stamped. On that arguments were heard by the Subordinate Judge who finding that the document had not been properly stamped impounded the same and sent it to the District Collector under Section 38(2), Stamp Act. In doing so, the learned Judge did not give any definite finding as to the quantum of the stamp to be collected and left the decision on this matter to the Collector and if the Collector cannot decide that question, the Subordinate Judge suggested, that the matter might be referred to the Chief Controlling Revenue authority, namely, the Revenue Board, for referring the matter to the High Court under Section 57 of the Act. What is contended very strenuously by Mr. Srinivasan is that the action of the Subordinate Judge in impounding the document end forwarding the same to the Collector with an accompanying letter does not amount to a decision of a case as contemplated under Section 115, Civil P. C. Prima facie this argument seems to be correct but on examining the matter and probing into the legal aspects of the forwarding of the document one has to say that the Subordinate Judge, when he came to the conclusion that the document in question has not been properly stamped has decided the case and that decision, so far as the Subordinate Judge is concerned, is final. It is not open to the party when once the Subordinate Judge reached that conclusion to get back the document or to proceed with the case as If the document has been validly tendered for purposes of letting in evidence. The finality that attaches to the view taken by the Subordinate Judge makes it a case decided by him. Therefore, it seems to me that apart from any authority, on first principles it can be said that the action of the Subordinate Judge is a case decided within the meaning of Section 115, Civil P. C. but the matter does not rest here.
(2.) MR . T.B. Srinivasan for the petitioner has brought to my notice two decisions, one of the Lahore High Court and the other of the Nagpur High Court. In - - 'Uttamchand v. Permannand',, A. I. R. 1942 Lah. 265 (A) Din Mohammad J. had to deal with a similar case. There also a document which was produced before the Subordinate Judge was found to be insufficiently stamped and the Court determined the stamp duty payable before impounding and forwarded the document to the Collector. This action of the Court was sought to be revised in revision and on the objection taken that it was not a case decided within, the meaning of the provisions of Section 115, Civil P. C., the learned Judge held that "it is a case decided within the meaning of Section 115, Civil P. C. inasmuch as the matter which was disputed, between the parties 'qua' this aspect of the case has, so far as the parties are concerned, been finally set at rest and no stage, will ever arise later at which this order of the Subordinate Judge would be liable to be attacked". The learned Judge, therefore, held that it was a case decided within the meaning of Section 115, Civil P. C. This decision has been followed later by the Nagpur High Court in - - 'In re Narayanadas Nathuram', (B), where Vivian Bose J. following the decision in - -, AIR 1942 Lah. 285 (A)', and other cases came to the conclusion that the order of the lower Court impounding the document is revisable. In view of the decisions cited above I have no hesitation in coming to the same conclusion. In the absence of any decision in Madras to show that the action of the Subordinate Judge is not a case decided within the meaning of Section 115, Civil P. C. I have to conclude that the Subordinate Judge has finally decided the matter so far as he was concerned. The preliminary objection is, therefore, overruled.
(3.) NOW that the preliminary objection has been overruled the merits of the case have to be gone into. The petitioner in the revision petition is the defendant in O. S. No. 8 of 1947 on the file of the Sub -Court, Salem. The suit was to recover a sum of nearly Rs. 2,00,000 with interest and the allegations are that the plaintiff respondent conveyed to the defendant petitioner half the right in a patent for manufacturing a particular kind of wood preservative, by means of an indenture dated 9 -4 -1945. This indenture was stamped in Mysore and according to the Stamp law in force there the value of the stamp paper used was Its. 4687 -8 -0, whereas at that time if a similar document were to be executed in what was then British India but now the Indian Union, the stamp duty would be more than Rs. 7400 and odd. According to Section 18, Stamp Act such instruments may be stamped with proper stamp duty under the statute within three months after it has been first received in India. But no such thing was done. Along with the plaint, a duplicate of the document in question was produced; but in the written statement the present petitioner raised an objection in para. 15 that the deed of assignment is inadmissible and unenforceable in the Indian Courts as it is not validly stamped according to the law prevailing in India. The plaintiff respondent, therefore, summoned the defendant for the production of the original which was in his possession. In obedience to this summons issued by the Court, the defendant brought the indenture into Court and kept it in Court custody on 24 -6 -1949. It has to be remembered in this connection that the defendant does not want to enforce the document, whereas the plaintiff's title and Justification for the claim is dependent upon the validity of the document in question. Therefore a compelling process from the Court resulted in the document coming into its custody. Thereafter, the Subordinate Judge, as stated already, impounded the document and under Section 38(2), stamp Act sent the same to the District Collector without giving a definite finding as to what should be the stamp duty to be collected on this instrument.;


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