P L D 1984 Peshawar 2 (PLP)

Date of hearing : 17th August, 1983. This Revision Petition filed by Mian Sher Rehman petitioner‑pre‑emptor has arisen in the following circumstances :‑ A suit for possession by pre‑emption with regard to the land detailed in the heading of the plaint was brought by the petitioner on 16‑11‑1970 on which date it was ordered that the petitioner should deposit Rs. 30,000 the pre‑emption money before the next date of hearing i. e. 16‑12‑1970. On 25‑11‑1970 the plaintiff‑petitioner applied to the Court that instead of depositing cash amount of pre‑emption money he be allowed to give security for the pre‑emption amount. On this application on the same day the Court ordered the petitioner‑pre‑emptor to deposit Rs. 10,000 in cash and give security as regards the remaining Rs. 20,

000. This order was complied with by the petitioner‑pre‑emptor and case proceeded on when the issues in the suit were framed on 25‑3‑1971. On 18‑9‑1971 the vendee‑respondents moved the Court that as the security bond was in sufficiently stamped the plaint be rejected under subsection (4) of section 23 of the N.‑W. F. P. Pre‑emption Act XIV of 1950. The petitioner was asked to furnish reply to the application which he did on 22‑9‑1971. The stand of the petitioner was that the security bond was properly stamped which was attested by the Court and placed on record. In the alternative it was averred that in case the security bond was found to be insuffi ciently stamped the petitioner, if so ordered by ‑the Court, was willing to make up the deficiency in the stamp duty.

2. After hearing the arguments of the parties the trial Court of Civil Judge IInd Class, Peshawar rejected the plaint of the petitioner under subsection (4) of section 23 of the Act ibid for that the plaintiff had failed to furnish the security as ordered by the Court. The judg ment and decree were impugned by the plaintiff pre‑emptor by filing an appeal before the Addl. District Judge Peshawar which too proved futile and the same was dismissed on 11‑12‑1972. It is conceded by the learned counsel for the petitioner and rightly too that the security bond under the law was to be affixed with a stamp of Rs. 30 which was not done and instead only a stamp of Rs. 25 was affixed on the bond. However, it was contended that as the security bond was accepted by the Court it could not reject the plaint under section 23 of the Act ibid ; that under section 35 of the Stamp Act the security bond was not invalid but only subject to disabilities specified in that section which could have been ordered to be removed as provided by proviso (a) to that section ; that the object of the Legislature in enacting Stamp Act mainly was to protect public revenues which could have been achieved by ordering the petitioner to make up the deficiency in the stamp duty and it was never intended to otherwise affect the rights of the parties.

3. In order to appreciate the matter in its true perspective the rele vant provisions of section 35 of the Stamp Act are reproduced here below .‑ "

35. Instruments not duly stamped inadmissible in evidence, etc.‑No intstrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive, evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped Provided that ‑ (a) any such instrument not being an instrument chargeable with a duty of one anna or half an anna only, or a bill of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is charge able, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion." Going through the section one thing becomes crystal clear that an insuffi ciently stamped document shall not be acted upon.

4. As all the three contentions of the learned counsel are inter. linked these shall be dealt with together hereafter. In compliance to the order of the Court dated 25‑11‑1970 the security bond was filed in Court on 15‑12‑1970 in the absence of the defendant‑respondents. The defendant‑respondents fort he first time were summoned for 16‑12‑1970 and they appeared in Court on 25‑3‑1971 and filed their written statement on ~ which date the issues were also struck. It would show that the security bond was filed in Court in their absence, it being so the respondents" could not be debarred to raise objection about the competency of the bond. An insufficiently stamped document becomes admissible in evidence if the full amount of duty and penalty is paid under proviso (a) to section 35 of the Stamp Act but for that a fresh order has to be passed by the Court allowing the making up of the deficiency the ultimate effect) of which would be to render the security bond actionable. I have is no cavil with the proposition that an insufficiently stamped document would not become invalid ipso facto but it is also very, clear that such a document cannot be acted upon. The object of section 23 of the Pre‑emption Act whereby the provision for deposit or the furnishing of security is made is to guarantee vendees against frivolous proceedings on the par of possible pre‑emptors. If an insufficiently stamped security bond is furnished which cannot be acted upon apart from the loss of public revenues it directly affects the interest of the vendees who, if the occasion arose to enforce the security bond would not be able to gain anything a it was not actionable. The next question that calls for determination is whether after the framing of issues the Court could pass another order calling upon the plaintiff to make up the deficiency in the stamp duty on the security bond. To me the answer to it is in the negative, for, it will be an order passed after the framing of issues by which a defective security bond has to be made actionable and this could only be done prior to the settlement of issues under section 23 of the Pre‑emption Act and not at any time after the framing of issues. Besides, at no time prior or subsequent to the framing of issues the plaintiff‑petitioner had applied to the trial Court, appellate Court or this Court that he was willing to make up the deficiency in the stamp duty and he be allowed to do so. It was essential in view of the fact that it was conceded that the security bond was deficiently stamped.

5. For the reasons aforesaid and agreeing with the concurrent finding of the two Courts below the revision petition is found to be devoid of merit and it is accordingly dismissed. The parties shall, how ever, bear their own costs. M. Z. M. Revision dismissed.