- (1.) THIS petition under Article 226 of the Constitution of India arises out of the proceedings in a suit in the Court of Judge Small Causes Courts, Rampur.
(2.) THE facts, in brief, are these. A suit was filed by Smt. Savitri Devi, respondent No. 3 claiming a money decree against the petitioner, who was the defendant in the suit. It was decreed ex parte on 6th Aug. 1977. On 8th Aug. , 1977 an application was moved by the petitioner for permission to give security before filing the application for setting aside the ex parte decree under O. 9, R. 13, C. P. C. , on the said application the petitioner was directed to deposit in cash the amount admitted by him and to give security for the balance. THEreafter, on 31st Aug. , 1977 the petitioner filed an application under O. 9, Rule 13, C. P. C, along with a document which purported to give the security which was directed to be furnished by him by the court by its earlier Order dated 8th Aug. , 1977. A true copy of the said document is Annexure-1 to the supplementary affidavit of the petitioner. THE document is reproduced below :- "security Bond. Whereas B. D. Arora defendant in the above noted case has been directed to give security for the net admitted decretal amount in Court which comes to Rupees 2873. 25 p. according to the defendant. I, Syed Tahir Ali son of Sayed Amjad Ali resident of Mahu Nagar Tahsil Swar, District Rampur do hereby undertake that in the event of the suit being decreed, I shall be liable to pay a sum of Rs. 2,873. 25 in Court for which I stand security. Executed this day of Aug. , 1977 at Rampur. Executant. " On 21-9-1977, the Munsarim of the Court reported that the security bond had not been given on a properly stamped paper. It seems that the document bore a Court-fee stamp of Rs. 2. The court's office thought that the document needed to be stamped under the Stamp Act. On the said report the court ordered that the correct stamp be supplied within a week. Thereafter on 5-10-1977 the petitioner filed a fresh security bond stamped under the Stamp Act. However, the Trial Court rejected the application under Order 9, R. 13, C. P. C. on the ground that there was no properly stamped security bond on 31st Aug. ,1977 when the said application was moved. Properly stamped security bond according to the Court was filed on 5-10-1977. The petitioner felt aggrieved with the Order of the Trial Court, a true copy of which is Annexure 3 to the petition. He accordingly filed a revision under Section 25 of the Provincial Small Cause Courts Act against the said Order. The revision, however, was also dismissed by the impugned Order dated 11-1-1980 a true copy of which is Annexure 4 to the petition. Feeling aggrieved, the petitioner has now come up in the instant petition and in support thereof, I have heard Sri B. D. Madhyan, learned Counsel for the petitioner and in opposition, Sri J. D. Pradhan, learned Counsel for the respondent No. 3 has made his submissions.
(3.) SRI Madhyan contended that the Courts below were wrong in thinking that the documents needed to be stamped under the Indian Stamp Act and not under the Court-fees Act. Article 6 of Schedule II of the Court-fees Act provides as follows : "bail bond or other instrument of obligation given in pursuance of an order made by a Court or Magistrate under any section of the Code of Criminal Procedure, 1898 or the Code of Civil Procedure, 1908 and not otherwise provided for by this Act. " Learned Counsel contended that the aforesaid Article was attracted in the instant case. He placed reliance on the following case : Kalapati Peda Pitchamma v. Chiruvella Pedamuneyya (AIR 1935 Mad 380) (FB), on the other hand the learned Counsel for the aforesaid respondent placed reliance on the Division Bench pronouncement reported in Kasemali v. Ajoyendu Paul (AIR 1956 Cal 375) which m its turn relied upon Baburao Keshavrao v. Kalavatibai Amrutrao (AIR 1940 Bom 275 ). The learned Counsel also placed reliance on Krishan Kumar v. Hakim Mohammad Umar ( (1978) 4 All LB 541) : (1978 All LJ 738 ).;