V.P.TYAGI, J. - (1.) IN a suit filed by respondent no. 1 Amar Chand against non -petitioners no. 2 to 5 an order was passed by the trial court under Order 38 Rule 6 C.P.C. that the amount of M/s Krishna Bros. lying with the Central P.W.D. may be attached. Having felt aggrieved by that order the petitioner filed objection under Order 21 Rule 58 C.P.C. and submitted in support of this claim four documents dated 22.3.69, 30.4.69, 14.6.69 and 6.8.69. The plaintiff objected the admissibility of these instruments in evidence on the ground that they were not property stamped. An issue was framed by the trial court and after examining the documents the learned Judge held that the instruments dated 30.4.69 14.6.69 and 6.8.69 were bonds in respect of the amounts Rs. 39500/ - Rs. 11000/ -, and Rs. 31000/ - respectively and since they were not properly stamped they could not be admitted in evidence unless the stamp duty along with the penalty was paid by the petitioner. This order of the learned Additional District Judge dated 9.12.71 is impugned by the petitioner by filing this petition under articles 226 and 227 of the Constitution inter alia on the ground that all these three documents which contained terms of agreement tendered before the execution of the documents, were nothing more than the memorandum of agreement and as such no stamp duty was leviable on them In the alternative it is averred that at best these documents can be covered by the term 'agreement' and they should therefore, be governed by Article 5 of the Rajasthan Stamp Act (hereinafter referred to as 'Act') It is also urged that since the error committed by the learned District Judge is patent on the face of he record, his court must exercise its extra ordinary jurisdiction to undo justice that has been done to the petitioner by asking him to pay the stamp duty and the penalty which according to the petitioner runs in thousands. It was therefore, prayed that this Court may declare trial the documents Ex. A., Ex. B and Ex. C are memorandum of past transactions and not chargeable to any stamp duty or in the alternative they may be declared as agreements which are chargeable to stamp duty under Article 5 of schedule II of the Act.
(2.) MR . U.L. Gupta who has appeared on behalf of respondent no. 1 has argued that the petition under Article 226 and 227 is not maintainable as a revision application can be filed under Section 115 of the Code of Civil Procedure to challenge the impugned order of the learned Additional District Judge; and even if the revision is not maintainable the petitioner cannot invoke the extra ordinary jurisdiction of this Court as the error which is said to have been committed by the trial court, cannot be said to be an error patent on the face of the record. The learned Counsel also argued that the language of these documents clearly bring them within the term 'bond' as defined in Section 2(5)of the Act. This contention of Mr. Gupta that a revision petition can lie before this Court under Section 115 of the Code of Civil Procedure, in my opinion, stands decided by the Full Bench Authority of this Court in Harakhchand v. The State of Rajasthan 1970 RLW 320. Mr. Gupta also placed reliance on certain authorities of this Court reported in Moon Lal v. Sampat Lal ILR (1952) 2 Raj. 1010, Sahu Brijraj Sharan v. Sahu Raghunandan Sharan and Anr. ILR (1956) 6 Raj. 367, Kalu Ram and Ors. v. Bhagirath ILR (1959) 9 Raj. 187 and Poonamchand v. M/s Bastiram Deokishan 1969 RLW 248 But out of these four judgments two judgments in Moonlal v. Sampatlal ILR (1952) 2 Raj. 1010 and Poonamchand v. Bastiram Deokishan 1969 RLW 248 have been over -ruled by the Full Bench judgment in Harakchand's case 1970 RLW 320. The learned Judges have specifically mentioned in the full bench case that they find it difficult to accept the view point expressed by the learned single judge in Moonlal v. Sampatlal ILR (1952) 2 Raj. 1010 and Poonamchand v. M/S Bastiram Deokishan 1969 RLW 248. Bhandari J. was a party to the Full Bench Authority where in Kalu Ram's case is referred and while relying on a division bench case reported in Sahu Brijraj Sharan v. Sahu Ragnunandan Sharan and Anr. ILR (1956) 6 Raj. 367 he held that a question whether a particular document was admissible in evidence on payment of penalty as provided Under Section 35 of the Act can be revised by the High Court under Section 115 of the Code of Civil Procedure. But the same learned Judge while deciding Raghunath Prasad's case ILR (1959) 9 Raj. 641 was definitely of opinion that the question of the admissibility of a document on the basis of insufficiency of stamp duty cannot be decided while exercising revisional jurisdiction under Section 115 of the Code of Civil Procedure. Division Bench in Sahu Brijraj Sharan's case ILR (1956) 6 Raj. 367 did not consider this question whether the question of admissibility of a document can be considered by the High Court in revisional jurisdiction and, therefore, the judgment given by the learned C.J. in Kalu Ram's case ILR (1956) 6 Raj. 367 cannot be said to be a correct judgment specially when the full bench has now laid down a definite law while dissenting from the judgment of Jagat Narayan J. in Poonamchand's case 1969 RLW 248 wherein it was held that all procedural errors fall under Clause (c) of Section 115 of Code of Civil Procedure. This view has been negativated by the full bench authority in Harakchand's case 1970 RLW 320. But it may be mentioned here that in Poonamchand's case 1969 RLW 248 the learned Single Judge was definitely of the view that the document if insufficiently stamped (which includes documents which require to be stamped but are unstamped) no revision would lie against an order offering to admit the document in evidence on payment of a certain amount of duty and penalty under the Stamp Act. In this view of the matter this argument of Mr. Gupta that the petitioner had an alternative remedy of filing the revision application against the impugned order of the trial court cannot be accepted.
(3.) THE alternative argument of Mr. Gupta that the error which is said to have been committed by the learned trial Judge while passing the impugned order cannot be said to be an error patent on the face of the record as this error which is being pointed out by the learned Counsel for the petitioner cannot be discerned by the perusal of the order sheets. In support of this argument the learned Counsel relied on the observations of the learned Judges in Jaman Singh and Anr. v. The Board of Revenue and Ors. ILR (1960) 10 Raj. 1638. Perhaps the learned Counsel has advanced this argument on the basis of the head note wherein it has been mentioned that the error must be patent and manifest on a bare perusal of the order itself But when this authority is carefully perused then we find that the learned Judges while relying on a previous authority of this Court in Dholpur Coop T and M. Union v. Appellate Authority, Rajasthan ILR (1953) 3 Raj. 931 reproduced the observations of the learned Chief Justice which are as follows: The meaning of this expression is well settled, and the error of law envisaged should be so patent that a bare perusal of the judgment and the record on which it is based would show that there was error. The expression the 'error' on the face of the record would therefore, mean that if by looking to the judgment and the record the error becomes manifest this Court can correct that error in the exercise of its jurisdiction under Article 226 or a supervisory jurisdiction under Article 227 if the court feels that a gross injustice is going to be perpetuated It is true that the High Court while exercising its jurisdiction under Article 226 or 227 cannot assume the role of an appellate authority, but if the mistake of law is patent on the face of the record and if that error is likely to perpetuate gross injustice to the parties then in extra ordinary circumstances this Court has been vested with a jurisdiction under Article 226 and 227 to correct such errors of law. I find support to this view of mine from the judgment of the Supreme Court reported in Satyanarayan Laxminarayan Hegde and Ors. v. Mallikarjun Bhavanappa Triumale AIR 1960 SC 187. ;