2008 PLP 429 (CLC)

SYED ASGHAR HAIDER, J.

Respondent No.1 filed an application for making award, dated 23-5-2001, rule of Court. The petitioner contested the application by filing written reply, issues were framed by the trial Court. The petitioner raised objection that the award dated 23-5-2001, is insufficiently stamped and was deficient to the extent of Rs.45,000.

2. The trial Court ordered respondent No.1 to deposit Rs.45,000 and make up deficiency by 7-5-2005; but he did not deposit the stated amount by the stipulated date and made an application for extension of time. The request was acceded to and further time was granted till 8-6-2005, to do the needful. Respondent No.1 again did not deposit the requisite stamp duty, consequently, the trial Court rejected the application for making award, as rule of the Court.

3. Aggrieved thereof respondent No.1 filed an appeal against this order and decree, which after contest was allowed and the time to make up deficiency was extended by 15 days by the appellate Court. The petitioner is aggrieved of this order, hence the present petition.

4. Learned counsel for the petitioner contended that respondent No.1 was granted opportunity twice to make up deficiency in the stamp duty on the award in the sum of Rs.45,000, but he did not comply with these orders, therefore, the application was rejected, further no sufficient cause for this delay was made out rifle lower appellate Court proceeded to extend time without examining the facts and circumstances and deliberate omission committed by respondent No.1 for making good the deficiency in stamp duty. It also did not take into account the provisions of sections 33, 35 and 38 of the Stamp Act, 1899, which require visitation by penalty, in case of short fall in stamp duty is not made good as directed. The learned counsel for respondent No.1 vehemently defended the impugned judgment and stated that respondent No.1 made out sufficient cause for non-compliance of the direction by the Court for making up the deficiency, and explained the matter with cogent reasons, which included snatching away of the disputed amount and death of a close relative in Karachi, therefore, the objection raised is untenable.

5. I have heard the learned counsel for the parties and perused the order of the trial Court as well as the judgment of lower appellate Court. It stands proved on record that the respondent was twice granted opportunity to make good the deficiency in the stamp duty required to be affixed on the award, in the sum of Rs.45,

000. The direction was not complied with, the reasoning stated before the trial Court was not convincing and consequently the application for making the award rule of Court was rejected. The lower appellate Court proceeded to condone this omission without proper judicial application of mind and taking into account the contumacious attitude of respondent No.1, as he had twice ignored a clear direction of the trial Court. Further the lower appellate Court also did not care to peruse and examine sections 35 and 38 of the Stamp Act, 1899, wherein it has been clearly stipulated, qua, an insufficiently stamped document is inadmissible in evidence and if it is to be made part of evidence, then it is subject to a penalty as contained in section

35. The lower appellate Court did not examine the mandatory provisions as contained in sections 35 and 38, therefore, it committed a material illegality. Resultantly, this petition is allowed, the impugned judgment and decree/memo. is set aside and the proceedings are remitted back to the lower appellate Court to consider the law on the subject, examine the effect of sections 33, 35 and 38 of the Stamp Act, 1899 and thereafter proceed to decide the matter afresh in accordance with law, after hearing both the parties. H.B.T./M-605/L Revision allowed.