P L D 1967 Lahore 564 (PLP)

This revision petition has arisen out of the order dated the 14th of February 1961 of the trial Court impounding the document (marked 'A') claimed by the plaintiff petitioner to be an agreement embodying dissolution of partnership between the parties. This document was appended to the plaint and formed basis of the suit. A plea was raised in the written statement that the document was a bond and not an agreement. Statements of the parties were recorded before issues when the respondent admitted that the document contained his signatures but he was not aware of its contents. Thereafter, the under mentioned two issues were framed by the trial Court:‑ (i) Has the plaintiff spent Rs. 4,000'00 on the business of the alleged partnership ? (OP) (ii) Was the defendant insane during the period when the partnership deed, marked 'A', and agreement deed, marked 'BI, were executed ? (OD). On the 12th of December 19(0 one witness of the plaintiff petitioner was examined without reference to this document. On the same day an application was made by the respondent for striking an additional issue and to impound the document under section 33 of the Stamp Act and forward it to the Collector. The Court after hearing arguments on the questions raised in this petition impounded the document and relying on Board of Revenue v. Alagappa (I L R 1937 Mad. 553) proceeded to treat it as a bond under section 2 (5) read with section 6 of the Stamp Act. As a consequence the plaintiff was directed to pay a penalty of Rs. 580*00 and Rs. 58‑00 as Stamp duty. This order is assailed before me on the ground that since the document has not yet been admitted into evidence, provisions of section 35 proviso (a) are not attracted and the trial Court was not vested with jurisdic tion to impose penalty and direct the petitioner to pay the stamp. It is argued that all that the Court had to do in the circumstances was to wait till such time either of the parties wanted to get the document, admitted in evidence and then take action under section 35 proviso (a), and if the party so desiring paid the penalty and the stamp, he could have admitted the document in evidence. If on the other hand the party chose not to pay the stamp and the penalty directed to be paid, the case should have been referred to the Collector under subsection (2) of section 38 for action in accordance with law under the provisions of section 40 of the Stamp Act. He maintains that the procedure adopted by the learned trial Court is not warranted by the provisions of law and, therefore, it is a case of assumption of jurisdiction not so vested in the trial Court. In this regard he has referred to the provisions of section 33 of the Stamp Act, Pearey Lal v. Sukhan Ram (A I R 1926 All. 478) and Ghulam Farid v. Board of Revenue, West Pakistan (P L D 1960 Lah. 211).

2. Mr. Sherwani, learned counsel for the respondent, has referred me to a Single Bench decision of the Karachi Bench reported as Haji Hamzo Panhwar v. Muhammad Ibrahim and others (P L D 1963 Kar. 962) which is based on an earlier decision reported as Nathu Gangaram v. Hansraj Morarji (9 B L R 122) and argues that only a direction has been given to the petitioner by the trial Court, and if he does not choose to pay the penalty, the trial Court will automatically take action under section 38(2) and refer the matter to the Collector and the petitioner is, therefore, in no way prejudiced by the order. I, however, find that the procedure adopted by the trial Court is not warranted by the provisions of section 35 proviso (a), because the document is admitted in evidence only when it is proved in accordance with the provisions of the Evidence Act and is exhibited and there is a chain of authorities to support the view that mere placing of the document on the record does not mean that the document has been admitted in evidence. Muhammad Ayub v. Rahim Bakhsh (A I R 1922 Lah. 401 (2)), Abdul Wahab v. Kanaka Anjaneyalu (A I R 1935 Mad. 888), Abdul Hashem v. Seraju Haque and others (P L D 1961 Dacca 596) and Hari Singh v. Firm Karam Chand Kanshi Ram (A I R 1927 Lah. 115) refer in this respect. 1, therefore, hold that since the document has not been admitted in evidence so far, the only order that could be passed by the trial Court was to impound the document under section 33 of the Stamp Act and to have deferred action under section 35 proviso (a) till such time the document was sought to be admitted in evidence by either party. In case this eventuality did not arise, the Court was empowered under the provisions of section 38 (2) to refer the matter to the Collector for action under section 40 of the Stamp Act. By this procedural step the Court has assumed jurisdiction which is not so vested in it and the case of the petitioner has been prejudiced. The order of the Court below is correct to the extent of impounding the document only and all other findings are set aside being premature.

3. Since I have set aside the order in respect of findings other than the action of impounding the document under section 33 of the Stamp Act, I am not called upon to decide the contention with regard to the nature of the document.

4. The revision petition partly succeeds and is allowed to the extent indicated above. The case will now go back to the trial Court for further action in accordance with law. There will be no order as to costs. K. M, A. Petition accepted.