2000 PLP 1010 (SCMR)

CH. MUHAMMAD ARIF, J.

By this order we intend to dispose of Civil Petitions Nos.893-L and 1059-L of 1999 which arise out of a judgment, rendered by a learned Judge in Chambers of the Lahore High Court, Lahore in Civil Revision No. 1915 of 1998 against judgment, dated 19-11-1998 passed by a learned Civil Judge 1st Class Lahore directing petitioner Messrs Jame's Construction Company (Pvt.) Limited in a suit under section 20 of the Arbitration Act, 1940, hereinafter referred to as the Act, appointing two Arbitrators on 12-10-1997 and directing them to announce their award and submit the same in Court, .with the following observations in relation to the petitioner in Civil Petition No. 1059-L of 1999 i.e., Province of Punjab's application, dated 31-10-1998 for de-exhibiting the Award on the ground that the same is unstamped and is liable to be impounded: -- "Therefore, for making the award admissible in evidence which is not duly stamped, the same is liable to be impounded and same is hereby impounded and 10 times penalty is imposed. The petitioner is directed to pay 10 times stamp duty with ratio of 3 % of the value of subject-matter. "

2. The learned Judge in Chambers heard the arguments of both sides and after noticing their respective pleas that (1) the award under reference came into being with the intervention of the Court in a suit under subsection (2) of section 20 of the Act, being proceedings in the suit and any award submitted in the Court as per terms of reference is an award made by order of the Court and, therefore, exempt from duty and (3) the order of the trial Court is perfectly legal and calls for no interference in exercise of Revisional Jurisdiction under section 115, C.P.C. in that the duty is to be paid and the trial Court was justified in impounding the same to reach the following conclusion:-- "

10. In the light of above discussion and keeping in view the provisions of sections 35, 36 and 61 of the Stamp Act as section 35 applies to Judges, Arbitrators and Local Commissioners, it is the duty of a Judge to safeguard the interest of revenue and take action suo motu, whether the counsel object to the admissibility of a document or not. The defect can be cured even by consent of the parties. This Court even suo motu can direct the impounding of the award and send it to Court for realizing the necessary stamp duty and the concerned party is - duty bound to pay the requisite amount. The stamp duty on the award in hand was deficient, therefore, the same should not have been admitted in evidence. It was rightly impounded by the Trial Court, therefore, the direction given by the learned Trial Court for the payment of stamp duty with ratio of 3 % on the subject-matter is eminently just and correct and the same is upheld. " "

11. As far as the imposition of 10 times penalty is concerned, the learned trial Court was not legally justified in imposing the same as the responsibility and fault cannot be attributed to the petitioner, therefore, the order of the learned trial Court to this effect is not warranted bylaw. "

12. In the light of above discussion, the Civil Revision is partly accepted. The petitioner is directed to make the payment of deficient stamp duty at the ratio of 3 % of the value on subject-matter within a period of two months from today. No order as to costs."

3. Hence these petitions by Messrs Jame's Company (Pvt.) Limited against the Province of Punjab through the Secretary to the Government of. the Punjab in the Communication and Works Department and others and by the latter against the former.

4. Mr. Raja Abdul Razzaq, learned Advocate-on-Record appearing in support of his clients case has forcefully contended that (1) the award having come about through the intervention of the Court, the same was not liable to stamp duty in terms of Article 12 of the Stamp Act (No.II of) 1899; (2) the award stood admitted in evidence according to the respondents as well and the result is that under section 36 of the Stamp Act, 1899 its admission could not be challenged in the suit on the allegation that the same is being deficiently stamped; (3) the case reported as Mst. Farida Malik and others v. Dr. Khalida Malik and others (1998 SCMR 816) ruled that an a\.Vard coming into existence without the intervention of the Court is compulsorily registrable under section 14 of the Registration Act (No.XVI of) 1908 otherwise it will be an invalid document sans creating any right notwithstanding amendment in section 49 of the Registration Act and that (4) although a precedent from across the border by Delhi High Court i.e. Darshan Singh v. M/s. Forward India Finance (P) Ltd., New Delhi and others (AIR 1984 Delhi 140), favouring him but there is no 4uthoritative pronouncement by this Court on points 1 to 3 above.

5. Mr. Ghulam Haider Al-Ghazali, learned Additional Advocate -General, Punjab did not controvert the stand taken by the learned counsel for the petitioner-company and contended that the case of the Provincial 13 Government to the effect that no person or authority can be petted to thrive on his/its ignorance of law certainly revolved around the resolution of the controversy, one way or the other.

6. Leave is granted in both the petitions to consider the afore-referred points. M.B.A./J-1/S Leave granted.