SUIT
NO.1089/2009
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Date Order with signature of
Judge
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1. For order on
commissioner report dated 23.08.2016.
2.
For hearing
of CMA No.12336/2016.
04.10.2016
M/s.
Moeen
Qamar and Faisal
Aziz advocates for plaintiff.
Mr. Mehmood
Alam advocate for defendant.
……………
SALAHUDDIN PANHWAR, J: Through instant application, defendant seeks
return of original power of attorney for compliance with regard to objection of
deficiency of stamp duty thereon.
2. It
appears from the record that during proceeding before Commissioner defendants
produced power of attorney but same was objected by learned counsel for
plaintiff on the plea that it is not duly stamped as same was executed out of
country (Bahrain); according to section 33 of the Stamps Act, it is to be
impounded and referred to Collector for penalty and compliance. In support of
this contention he has relied upon 1989 MLD 3402 which contains that “Document
admitted in evidence by the trial Court without applying its mind, hence it is
not open to the appellant to call in question the admission of the document in
view of provisions contained in section 35 of the Stamp Act 1899,” as well
it was observed that penal sections are there to impose the penalty. I am also
of the view that undervalued power of attorney cannot be denied to be produced
before the person, competent within meaning of Section 33 of the Act
because what is to be seen at later stage is ‘admissibility’ of
such document in evidence. Let’s have a direct reference to Section 33
of the Act which is:
“33.
Examination and impounding of instruments: (1) Every person having by law
or consent of parties authority to receive evidence, and every person in charge
of a public office, except an officer of police, before whom any instrument,
chargeable in his opinion with duty, is produced or comes in the performance
of his functions, shall, if it appears to him that such instrument is
not duly stamped, impound the same.”
3. A
bare reading of the Section 33 of the Act, makes it clear that initial responsibility
to examine such produced document lies on shoulder of the Court or the
person, so authorized to receive evidence but if the Court or such person fails
to examine the document and there comes no objection towards
admissibility of such document from rival side, as is so evident from Section
36 of the Act. However, once either on
its own the Court or competent person takes notice of deficiency of stamp on
such document or the rival points it out, then such Court or person is left
with no discretion but to examine the document to determine whether the
document is duly stamped or otherwise, as is evident form Section 33(2)
of the Act. If the document is found to be not duly stamped then there
is no exception but to impound the document. The object of leaving no discretion
seems to be that the government must receive due amount on proper
stamping on such document , as was applicable when such document was executed
or first executed couple with permissible penalty. At this
juncture the operative part from judgment, referred supra is made
hereunder:-
“After a document has been
impounded, it is the choice of the litigant to tender it in evidence on payment
of requisite duty and penalty or to ask the Court to refer the matter to the
Collector under subsection (2) of section 38. If the party does not want to
produce the document in evidence or otherwise prefers to have the course laid
down in section 38(2) adopted by the Court, the latter cannot embank upon determination and realization of the duty and
the penalty. It is noteworthy that when a part offers to tender an unstamped or
insufficiently stamped document in evidence and the 10 times of the duty,
payable on the instrument exceeds Rs.5, the Court must impose a penalty, equal
to 10 times of the duty chargeable thereon and in view of the provisions of
section 35, is, not left with any choice, to inflict a lesser penalty. However,
in this behalf, under section 40 , the Collector
appears to be possessed of wider powers.”
In the instant matter, it is a matter
of record that neither the document has been impounded nor the Court /
competent person has imposed penalty as per Section 35(a) so as to declare the
document ‘admissible in evidence’ however, the defendants are ready to
pay up the insufficiency of stamp for which seeking return of document.
4. All these
facts prima facie, make it clear that defendants do not deny
insufficiency of stamp on the document hence such produced document, having
been produced before competent person, cannot be legally returned but
has to be impounded even if the defendants do not want the document to be ‘admitted
in evidence’ ,
therefore, same is deemed to have been impounded. It is however, matter
of record that the course, provided by Section 33 of the Act is not followed
nor is being pressed by defendants then there shall remain available only course
provided by Section 38(2) of the Act which reads as:
“(2)
In every other case, the
person so impounding an instrument shall send it in original to the Collector.’
who
(Collector) shall follow the procedure provided by section 40 of the Act which lasts
on subsection (3) of Section 40 of the Act i.e:
“(3) When an
instrument has been sent to the Collector under Section 38, subsection (2), the
Collector shall, when he has dealt with it as provided by this section, return
it to the impounding officer.’
Accordingly, it is hereby ordered
that learned commissioner shall send the document to the Collector within meaning of Section 38(2) of the Act
and the Collector shall deal therewith in accordance with Section 40 and
40A (Sindh Amendment). This exercise be
completed preferably within a period of one month. Application is
disposed of accordingly.
J U D G E
Imran/PA