ORDER
L. Narasimha Reddy, J.
1. Petitioner filed O.S. No. 1776 of 2001, against the respondents, in the Court of IV Senior Civil Judge, City Civil Courts, Hyderabad, for specific performance of an agreement, dated 15-1-2001. The trial of the suit commenced. Along with an affidavit, in lieu of chief-examination, the petitioner filed the agreement, dated 15-1-2001. On entertaining a doubt, as to its admissibility, on account of its not being properly stamped, the petitioner filed I.A. No. 681 of 2002, under Section 151 C.P.C., requesting the court to record a finding, as to the admissibility of that document, with reference to the sufficiency of stamp duty. Respondents 11 and 12 contested the matter. The trial Court passed a reasoned order dated 26-2-2003, in that I. A., directing that the document is marked as Ex.A-1, subject to the objection as to the stamp duty. The Chief Ministerial Officer (CMO) of that court, was directed to assess the stamp duty and penalty payable on the document. The petitioner was given an option, either to pay the stamp duty and penalty that may be determined by the Court, or to get the document impounded, by the revenue authorities.
2. At a subsequent stage, the petitioner requested the court to return the document, on the ground that it wants to get it impounded, by the revenue authorities. Placing reliance upon the judgment rendered by a Division Bench of this Court in Chintalapudi Annapurnamma v. Andukuri Punnayya Sastry, the trial court passed an order, dated 11-3-2003, holding that once the document was admitted in evidence, it was impermissible for the petitioner to take it back, or to get it impounded, through the revenue authorities. The same is challenged in this revision.
3. Sri B. Vijaysen Reddy, learned Counsel for the petitioner, submits that the document cannot be said to have been admitted or received in evidence as yet, since it was dependant upon payment of stamp duty, that may be determined by the CMO. He submits that the Indian Stamp Act, 1899 (for short “the Act”) gives an option, to a person relying upon an unstamped or insufficiently stamped document, to pay the deficit stamp duty, as may be determined by the court itself, under Section 35, or to get it impounded, under Section 33 of the Act, through the revenue authorities. He contends that the trial court itself recognized such an option, when it passed the order in I.A. No. 681 of 2002, and that it had virtually reviewed its own order by refusing to return the document. He submits that the judgment of this Court in Chintalapudi Annapurnamma’s case did not prohibit such options.
4. Sri J. Prabhakar, learned Counsel for the respondents 11 and 12, on the other hand, submits that the petitioner itself filed an application, for determination of the quantum of stamp duty payable on the document, and having invited an order from the trial court, it cannot retreat from the option exercised by it. He further contends that the document had since been admitted into evidence, as Ex.A-1, by the trial court, though subject to payment of the deficit stamp duty, and it is impermissible for the petitioner to take it back, or to have recourse to the alternative method of getting the document impounded. He submits that the judgment of a Division Bench of this Court in Chintalpudi Annapurnamma’s case (1 supra), prohibits such course of action.
5. To the same effect are the submissions of Sri M.S. Prasad, learned Counsel for respondents 1 to 10.
6. The controversy in this CRP is about the procedure to be adopted, to get an insufficiently stamped document impounded, so as to make it admissible in evidence. The Act provides for levy of stamp duty on various transactions. Under the scheme of the Act, a document witnessing the corresponding transaction, assumes legality and acceptability, only when the prescribed stamp duty is paid thereon. Conversely, nonpayment of stamp duty, or any deficiency, in that regard, would render the document, unacceptable in law. The infirmity attached to deficiency as to stamp duty, and the consequences flowing out of it, apply not only to the proceedings before the Courts, but also various authorities. The Act was enacted more than a century ago, when the country was under alien rule. Over the time, except the charging and other incidental provisions, rest of the provisions are left in tact. In the 19th Century, the Courts were not so organized, as they are to-day. Therefore, much distinction did not prevail between the adjudication by authorities on the one hand, and the courts, on the other hand. Obviously for that reason, the expression “every person” was employed, throughout the Act, to take in its fold, the persons having the authority to receive evidence, or in charge of public office. Courts are presumed to be taken into fold, of the said expression, as is evident from a reading of Sub-section (2) of Section 33 of the Act. Same expression is used in important provisions, such as Sections 33, 35, 38, 41, 42, etc. The word “person”, which was used to include such a variety of authorities conferred with adjudicatory powers, is not defined under the Act.
7. Any deficiency, as to payment of stamp duty, is permitted to be cured by a process, known as impounding. Though that word is used in Section 33 of the Act, neither the process is elaborated in any other provisions, nor the word is defined. The attempt here is not to point out any defects in the Act, or to indicate that it is unworkable. The endeavour is to highlight the need, to up-date the enactment, in such a way, as to be clear and unambiguous, than to rely upon assumptions, as to what the legislature, that too, of a foreign country, might have intended a century ago, and to strive whether the same thing holds good, even after lapse of time and change of regime.
8. Be that as it may, insofar as it relates to the admissibility of documents, vis-a-vis the stamp duty, the Act contains certain provisions, having a bearing on this. Section 33 of the Act provides for impounding, wherever the instrument is not duly . stamped. This provision is general in its purport. Section 35 of the Act provides for the manner in which the impounding can be undertaken. Clause (a) thereof, mandates that the impounding can be done by collecting stamp duty, as well as a penalty of Rs. 15/-, or ten times the duty unpaid on the instrument, whichever is higher. Section 38 of the Act provides for an option to the courts, or the persons authorized to receive the instrument as evidence, either to impound the documents by themselves, or to send them to the revenue authorities for impounding. If the impounding is done by the “persons” themselves, they are placed under obligation, to send the amount collected by them, together with a copy of the document, to the concerned revenue authority.
9. A perusal of Section 39 of the Act, discloses that where the impounding of an instrument is done by any “person” (which includes courts), the revenue authority has a very limited option. It can only refund any amount received by it, from such person, if it finds that there is any excess. However, it cannot record any finding, as to the inadequacy of the stamp duty and penalty collected by “the person”. Under Section 40 of the Act, the revenue authority has the full discretion in the matter of impounding any instrument under Section 33, or those sent to it, under Sub-section (2) of Section 38. The discussion on this aspect would be incomplete, without reference to Section 36. It mandates that once a document is received in evidence, no objection as to its deficiency of stamp duty can be raised, at a later point of time. This, broadly is the scheme, in relation to the impounding of the documents.
10. The scope of discretion of the court (read person), in acceding to the request of the parties, to refer a document for impounding, to the revenue authority, was the subject matter of several decisions rendered by this Court and other High Courts. Recently, a Division Bench of this Court in Chintalapudi Annpurnamma’s case (1 supra) held that the option of a party, either to pay the deficit stamp duty and penalty on a document into the Court itself, or to make an application before the Court to send the document to the revenue authority, remains in tact, and the question of admissibility of document, has to be deferred, till any of these courses are adopted and concluded.
11. In the instant case, the petitioners filed I.A. No. 681 of 2002, before the trial court, for determination of the stamp duty payable on the agreement of sale. Strictly speaking, such an application was superfluous. That very question would certainly have fallen for consideration, whenever the document is sought to be introduced into evidence. All the same, the trial court discussed the matter, at length, and opined that the petitioner would have the option, either to pay the stamp duty and penalty, that may be determined by the CMO of the court, or to get the document impounded by the revenue authorities. Strictly speaking, the trial court did not undertake any determination as such, but had only indicated the options, open to the petitioner, under the law. The so-called marking of the document, as Ex.A-1, “subject to payment of the stamp duty and penalty”, was in fact, a misnomer. When Section 35 of the Act strictly prohibits admission of any document in evidence, unless it is properly stamped, marking of document, subject to payment of deficit stamp duty and penalty, can, by no stretch of imagination, be treated as a step in the admission of the document in evidence. At any rate, by no stretch of imagination, it can be said that the document stood admitted, as contended by the respondents. In fact, such a contention would nullify their objection, totally. The reason is that if a document is deemed to have been admitted in evidence, Section 36 of the Act comes into play, and any objection as to deficiency in stamp duty, becomes impermissible.
12. To a larger extent, the root cause for the present controversy is the marking of document, as Ex.A-1, may be, subject to payment of deficit stamp duty. The respondents contended that such a marking had sealed the option of the petitioner, to seek the impounding of the document under Sub-section (2) of Section 38 of the Act.
13. In this context, it needs to be observed that a document can be said to have been admitted in evidence, if only all the objections, in relation thereto, either have been complied with, or were overruled by the Court. Before the recent amendment to C.P.C., through Act 104 of 2002, the objections as to the admissibility of documents, used to be dealt with, whenever they were sought to be introduced by a witness, during the course of chief-examination. With the introduction of the facility of filing affidavits in lieu of chief-examination, a situation had emerged, wherein the admissibility or relevancy of a document had to be dealt with, only at the stage of cross-examination of the witness. Before that stage, the documents are already given identification numbers, when they are filed along with the affidavit, in lieu of chief-examination. In a different occasion, this Court pointed out that the marking given to the documents, when they were presented along with the affidavit in lieu of chief-examination, is only tentative, and the actual admissibility of such documents, can be considered, only at the stage of cross-examination of the concerned witness.
14. Before these developments, the Supreme Court had an occasion to deal with the practice of marking the documents, “subject to objections”. In Ram Rattan v. Bajrang Lal, such a practice was not approved, and the Supreme Court held as under:
“When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would nonetheless be obligatory upon the court to decide the objection.”
It was observed that till the admissibility of document is examined by the Court, at any stage in the suit, the consequences provided for under Section 36 of the Act, do not get attracted. The ratio of this judgment, squarely applies to the facts of the present case.
15. There is another facet of the matter. The trial court passed a reasoned order in I.A. No. 681 of 2002, keeping open the option of the petitioner, to pay the deficit stamp duty and penalty into the court, or to get the document impounded, through revenue authorities. The purport of the order under revision is to restrict that option, to the one for payment of the stamp duty and penalty into Court itself. The only basis for this deviation from the earlier order is said to be the judgment of this Court in Chintalapudi Annapurnamma’s case (1 supra). As pointed out earlier, there is nothing in the said judgment to support that view. The order under revision amounts to reviewing the earlier order passed by the trial court in I.A. No. 681 of 2002. Neither any application was filed for this purpose, nor any circumstances warranting it, was pointed out.
16. Viewed from any angle, the order under revision cannot be sustained. The same is accordingly set aside, and the revision is allowed. The suit is of the year 2001. It is represented that a direction was issued by this court, on an earlier occasion, for disposal of the suit, within the time stipulated. On account of the pendency of this revision, the trial court could not proceed with the matter. Now that there does not exist any impediment, the trial court shall endeavour to dispose of the suit, by 31-12-2005.
