Subhro Kamal Mukherjee, J. - (1.) This is to consider an application under Sec. 115 of the Code of Civil Procedure against the Order No. 74 dated August 14, 2001 passed by Shri Amjad Ali, learned Civil Judge (Senior Division), Third Court at Alipore, District : South 24 -Parganas in Title Suit No. 25 of 1998 whereby the learned trial Judge directed the plaintiff to produce the document -in -question, failing which, it was directed that, the suit would stand dismissed. The brief facts leading to filing of the present revisional application before this Court may be summarised as under: (a) The plaintiff/petitioner instituted Title Suit No. 25 of 1998 in the said Court seeking to enforce an agreement being joint venture agreement dated December 27, 1995 concerning premises No. 12, H.L. Sarkar Road, Police Station: Regent Park, Calcutta -700070. District: South 24 -Parganas. (b) An application for temporary injunction under Order 39, Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure was filed in the said suit annexing a photocopy of the said agreement dated December 27, 1995. On the said application the learned trial Judge on March 26, 1998 passed an ad interim order of injunction, as prayed for in the said application, and, subsequently, the said application for temporary injunction was allowed and the interim order of injunction passed on March 26, 1998 was made absolute. (c) On June 21, 2001 peremptory hearing of the suit was fixed and parties filed haziras. The plaintiff's witness No. 1. Biswajit Chakrabbrty, namely, the plaintiff himself, was ready for adducing evidence. On that date even before the said witness could step into the witness box, the defendant/opposite parry raised an objection as to whether photocopy of the said agreement could be exhibited inasmuch as the same was impoundable. as proper stamp duty was not paid. It is contended that the defendant/opposite party had the occasion to raise the said objection as the learned Advocate for the plaintiff wanted to produce a photocopy of the said agreement. (d) The learned trial Judge fixed another date for hearing on the question of the stamp duty. The learned Judge, ultimately, by the order impugned directed the plaintiff to produce the document -in -question and for taking necessary steps, failing which, it was directed that, the suit would stand dismissed on the date fixed.
(2.) The learned Judge in the order impugned held as under: (i) That the disputed agreement between the parties for the development of the property was prepared on a ten rupees stamp paper and, therefore, the said agreement was not properly stamped and as such it was necessary to impound the said document before it has to be taken into evidence and marked as exhibit. (ii) The agreement was for development with a promoter and as per Schedule 1A, Item No. 5(d), it was necessary to pay stamp duty as a conveyance for the market value of the property. (iii) Therefore, on basis of the said agreement the suit filed by the plaintiff was not maintainable unless he expressed his readiness to pay the duty as required as per Item No. 5(d) of Schedule 1A. (iv) The plaintiff has not filed the original document and, therefore, if he wanted to proceed with the suit, he must file the said agreement expressing his willingness to pay the stamp duty and penalty, as document was required to be impounded. (v) Without complying with the requirements of Ss. 33 and 35 of the Indian Stamp Act, 1899. the suit would not be proceeded with as there was no original document before the Court and in the absence of the original document the suit was liable to be dismissed with costs.
(3.) Being aggrieved the plaintiff has came up with this revisional application.;