COMMISSIONERS FOR THE PORT OF CALCUTTA Vs. BHAIRADINRAM DURGA PROSAD
LAWS(CAL)-1960-7-14
HIGH COURT OF CALCUTTA
Decided on July 19,1960

COMMISSIONERS FOR THE PORT OF CALCUTTA Appellant
VERSUS
BHAIRADINRAM DURGA PROSAD Respondents

JUDGEMENT

Lahiri, C.J. - (1.) This reference arises out of a second appeal filed by the plaintiff against a decree made by the Second Court of Subordinate Judge, Alipore, affirming a decree for ejectment against the respondent. The respondent was a lessee under the appellant under an indenture of lease dated April 7, 1937. Under the terms of that indenture the lessors agreed to let and the lessee agreed to take on lease for a period of two months from April 10, 1937 and thereafter subject to the conditions mentioned in the lease on a monthly tenancy, agreeing to pay monthly rent at the rate of Rs. 11/14/- (Rupees eleven and annas fourteen) only. That tenancy was terminated by the appellant by a notice to quit and on tha expiry of the period of notice the appellant sued the defendant-respondent for ejectment and obtained a decree in that suit. In this suit the lease executed between the parties was produced and marked as Exhibit 1. The indenture was stamped with a stamp duty of twelve annas under Article 35 Clause (a) (i) of the Indian Stamp Act. In the Trial Court the defendant raised an objection as to the sufficiency of the stamp paid on the indenture of lease but that objection was overruled by the Trial Court on the authority of the decision of this Court in the case of A. M. Amolia v. Ibrahim Ishak, 23 Cal. W. N. 398: (AIR 1919 Cal 200 (I)) decided by Sanderson, C. J. and Woodroffe, J. After overruling the objection as to the sufficiency of stamp the Trial Court admitted the lease into evidence and marked it as Exhibit 1. The defendant took an appeal against the decree of the Trial Court and in the Appellate Court the defendant raised a similar objection as to the sufficiency of stamp affixed to the lease and contended that the lease should be stamped under Article 35(a) (viii) of the Indian Stamp Act. The Appellate Court without referring to tha decision in Amelia's case in 23 Cal. W. N. 398 : (AIR 1919 Cal 200 (1)) accepted the defendant's contention but in view of the provisions of sec. 38 o the Indian Stamp Act read with the ruling in the case of Bhupati Nath Chakravarty v. Basanta Kumari Devi, AIR 1936 Cal. 556, came to the conclusion that it had no power to question the admissibility of the document in view of the fact that it had been rightly or wrongly admitted by the Trial Court. Nevertheless the Appellate Court observed as follows: "The matter of realisation of the stamp duty penalty also now lies with the Collector, as I find from the aforesaid ruling, Office to do the needful and send necessary intimation to the Collector." In the end, however, the Appellate Court affirmed the decree for ejectment made by the Court of first instance in favour of the appellant. Against this decree of the lower appellate Court, the appellant filed a second appeal for the purpose of challenging the view expressed by the lower appellate Court as to the sufficiency of stamp paid upon the indenture of lease and also the legality of the direction given by the lower appellate Court for the purpose of realising stamp duty and penalty.
(2.) When the appeal came up for hearing before a Division Bench consisting of My Lord P. N. Mookerjee, J. and myself, we thought that the decision in the case of Amolia, 23 Cal. W. N. 398: (AIR 1919 Cal 200(1)) was not correct and we referred two questions for decision by a Full Bench. Those questions are:-- (a) Whether a lease which creates a monthly tenancy simpliciter, terminable by a notice to quit, is governed by Article 35(a) (i) or Article 35 (a) (viii) of the Indian Stamp Act as amended by Bengal Act III of 1922; and (b) Whether the case of 23 Cal. W.N. 398: (AIR 1919 Cal. 200 (1)) was correctly decided. As the questions arose in second appeal, the Division Bench referred the whole case for the decision of the Full Bench.
(3.) After hearing Dr. Gupta in support of the appeal at considerable length, I have reached the conclusion that the questions which have been referred to the Full Bench do not really arise upon the order made by the Court of appeal below, I have already quoted above the operative portion of the order made by the lower appellate Court. It is quite clear that the direction given by the lower Appellate Court does not come under any of the sub-sections of Section 61 of the Indian Stamp Act. That Section 61 does not authorise any Court of appeal to direct its office "to do the needful and send necessary intimation to the Collector" for the purpose of realisation of stamp duty and penalty. The order made by the Court of appeal below, therefore, is entirely without jurisdiction. If we take this view of the matter, the appeal filed by the appellant is not maintainable because the decree of the lower appellate Court, as it stands, is entirely in favour of the appellant and the appellant cannot have any right of appeal against a finding when that finding does not affect the decree which is wholly in its favour. Still, however, as suggested in the order of reference, we treat the memorandum of appeal as a petition in revision and quash the direction given by the Court of appeal below upon its office to give necessary intimation to the Collector for the realisation of stamp duty and penalty.;


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