1990 PLP 69 (SCMR)

Date of hearing: 26th April, 1989. NASIM HASAN SHAH, J.‑‑This appeal, by leave of this Court, is directed against the order, dated 23‑2‑1988 passed by the Lahore High Court, Rawalpindi Bench, dismissing the Constitutional petition filed by the appellant against the order, dated 17‑1‑1988 passed by the Additional District Judge. The facts, which form the `background, are that respondent No.2, Mst. Bano Bi, owned a house situated in Gowalmandi, Rawalpindi. Her grand‑son, the appellant herein, filed a civil suit on 16‑9‑1972 claiming that he was the owner of the house on the basis of a gift made by his grand‑mother (Mst. Bano Bi) in his favour. The said lady, Mst. Bano Bi, allegedly appeared in Court on 17‑3‑1973 and confessed judgment. Accordingly, a decree was passed in favour of the appellant. On 25‑1‑1986, however, Mst. Bano Bi moved an application before the Court under section 12(2) of the Code of Civil Procedure alleging that she had neither appeared before any Court nor submitted any written statement and that the decree obtained by the appellant was based on fraud and misrepresentation. Her claim was that she had never made any gift in his favour and that on the other hand the appellant, even after the passing of the decree in his favour, was himself an attesting witness to a lease agreement of the house in question to a Bank. The learned trial Court framed three issues on the basis of the pleadings of the parties. The relevant issue for our present purposes was to the effect whether Mst. Bano Bi was entitled to get the decree dated 17‑3‑1973 set aside. In order to establish this issue in her favour Mst. Bano Bi produced a copy of the lease agreement allegedly executed at the time of letting out the house to the Bank. The trial Court found that the agreement did not bear the necessary stamp duty. He, accordingly, impounded the document and a penalty of stamp duty in the sum of Rs. 18,040 was assessed and Mst. Bano Bi was called upon to deposit the said amount before she could get the document received as evidence. Mst. Bano Bi challenged the said order of the trial Court in revision before the District Judge which was heard by the learned Additional District Judge. The learned Additional District Judge, vide order dated 17‑1‑1988, accepted the revision petition and set aside the order of the trial Court. He issued a direction that the applicant (Mst. Bano Bi) should be allowed to lead her evidence to get the document exhibited. Feeling dissatisfied with this order, the appellant filed a writ petition in the High Court questioning its legality. The writ petition was taken up for disposal by a learned Single Judge of the Lahore High Court (sitting at Rawalpindi) who was pleased to dismiss the aforesaid writ petition observing, inter alia, that it was not a fit case for exercise of the writ jurisdiction of the High Court observing in this connection that "the nature of the dispute like that of court‑fee concerns state revenues and is a question arising between Mst. Bano Bi respondent and the State. The State does not appear to be aggrieved of the decision of the learned Additional District Judge". Hence this appeal. The learned counsel for the appellant has, in .support of this appeal, submitted that the main reason for the High Court to refuse interference in the matter really was that the contesting party could agitate the objection about the admissibility of the document in question (even if it was not duly stamped)` at any later stage in the proceeding. But this view of the High Court was not in accordance with law because under Section 35 of the Stamp Act 1899 the question of admissibility of a document on the ground that it is not duly stamped is prohibited if the contesting party does not do so at the stage when. it is admitted into evidence and exhibited. Any objection in regard to this question at any later stage is prohibited. Be that as it may we; are inclined to agree with the learned Judge of the High Court that this was not a fit case for exercise of the writ jurisdiction. The dispute was between a grand‑son and his grand‑mother. The grand‑son was claiming that the house in dispute was gifted in his favour by the grand‑mother‑‑a fact which she was vehemently denying. In support of her assertion she wished to rely on the circumstance that the grand‑son had acted as an attesting witness on a lease deed which she had executed while renting out the house in question to a tenant, after the date of the alleged gift in his favour. Hence she was desirous of bringing the lease deed on the record. But the grand‑son was objecting to it being exhibited, with the result that this very relevant piece of evidence was being attempted to be kept out of consideration on the technical ground of it not being properly stamped. The trial Court found that the lease deed could be exhibited but on payment of Rs. 18,040 as penalty. However, on revision, the learned Additional District Judge came to the conclusion that Mst. Bano Bi was not only etitled to get the aforesaid document exhibited but could so without payment of any stamp duty. The High Court has opined that the question whether the appellant should or should not pay any penalty is a matter for the State to feel concerned about and not the appellant herein. His worry, we presume, is on account of the fact that he does not wish this important piece of evidence to come on record realising that it would play an important part in the decision of the question whether he had obtained earlier decree by fraud. To accept his objection would be tantamount to placing unnecessary obstacles in the way of doing complete justice in the case. The High Court., therefore, very rightly held that this was not a fit case to exercise its discretiornary writ jurisdiction. We wholeheartedly agree. No ground for interference, therefore, exists. The appeal is, accordingly, dismissed. A.A/G‑226/S?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.