AHIBHUSAN JANA Vs. STATE OF WEST BENGAL
LAWS(CAL)-1970-3-42
HIGH COURT OF CALCUTTA
Decided on March 10,1970

AHIBHUSAN JANA Appellant
VERSUS
STATE OF WEST BENGAL Respondents

JUDGEMENT

Murari Mohan Dutt , J. - (1.) This Rule has been obtained against the orders dated July 22, 1965, August 9, 1965 and August 20, 1965 passed by the Munsif, 2nd Court at Contain in Title Suit No. 286 of 1963. The petitioner who was the plaintiff in the said suit filed some documents in the trial court. One of the documents which was tendered and proved was marked as Exhibit on July 22, 1965. The said document marked as Exhibit is an unregistered deed of partition. The document did not bear any stamp and it is not in dispute that the said document (Exhibit 1) was required to be stamped under the provisions of the Indian Stamp Act, 1899 (hereinafter referred to as the Act) The learned Munsif by his order No. 58 dated July 22, 1965 also recorded the admission of the documents in evidence including the said unregistered deed of partition which, as aforesaid, was marked as Exhibit 1. By a subsequent order passed on the same date the learned Munsif noted that the document marked Exhibit was not stamped and accordingly he impounded the said document and directed the petitioner to deposit stamp duty of Rs. 491.25P and penalty of Rs. 4912. 50P in all Rs. 5403. 75P. The petitioner not having deposited the said amount on account of stamp duty and penalty in respect of the said document (Exhibit 1), the learned Munsif by his order No. 69 dated August 20, 1965 directed that the document should be expunged from evidence and that the same should be sent to Collector for realisation of the stamp duty and penalty. Mr. Mitter, learned Advocate appearing on behalf of the plaintiff - petitioner, submitted before me that in view of the provision of Section 36 of the Act the learned Munsif had no jurisdiction to impound the document in question and to impose penalty also. He further submitted that the learned Munsif acted illegally in expunging the said document from evidence and in directing the Collector to realise the stamp duty and penalty.
(2.) Section 36 of Act states that : "Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."
(3.) There is no doubt that the document was admitted in evidence at the instance of the plaintiff and same was marked as Exhibit 1. No objection was taken on behalf of the opposite party against admission of the said document. As soon as the document was admitted in evidence the provisions of section 36 of the Act come into operation and the learned Munsif could not, in my view impound the document or direct payment of penalty, It may be, that on the same day the document was admitted into evidence, the learned Munsif passed the order directing payment of stamp duty and penalty. But that does not make any difference for the order was passed subsequently to the admission of the document in evidence. The Collector who is the opposite party before me had the remedy as provided in Section 61 of the Act, but it does not appear from the records that any such remedy was availed of on behalf of the Collector.;


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