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Present: Pereira J. and Ennis J.JAYAWICKRAMA et al. v. AMARASOORIYA161—B. C. Galle 11,862.
Pleading insufficiently stamped—Not rejected by Court—Presumption infavour of an adjudication as to its sufficiency—^Inadvertent omission,of the Court to consider question of stamp duty—Court may, returnpleading for proper stamping before other side takes any steps in'. case—Attorney-General to take steps to recover deficiency of duty—Civil ProcedureCode, 8$.46,77—Objection not to be takenin
answer as to insufficiency of duty.
When a plaint or an answer is not rejected by a District Judgeunder section 46or section77of the Civil Procedure Code,the
presumption is that the Judge has adjudicated in favour of theparty who had tendered the pleading on the question as to thesufficiency of the stamp- thereon. When a plaint, or answer isaccepted as the result of an inadvertent omission on. the part ofthe Court to consider the question* of the sufficiency of stamp duty,it may be that before any step in the regular course of procedureis taken by the opposite party the Court may return the pleadingto be properly stamped ; but, generally speaking, where an insuffi-ciently stamped pleading is accepted after consideration of thesufficiency of stamp duty or inadvertently, the remedy, if anyexists, is by means of «euch action as the Attorney General, asrepresenting the Crown, to which all stamp duties are a debt, maybe deemed to beentitled totake. No objection can be taken by a.
defendant in hisanswer ontheground of the insufficiency ofthe
stamn on a plaint.
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fJlHE facta appear from the judgment.
Bawa, K.G., for defendants, appellants.
H. J. G. Pereira, for plaintiffs^ respondents.
Cur. adv. unit.
February 20, 1914. Pereira J.—
In this case the defendant appeals from two orders made by theDistrict Judge: (1) an order directing that this action do proceedon the plaintiffs supplying a deficiency of stamp duty on the plaint;and (2) an order rejecting the 2nd, 3rd, 4th, 5th, 6th, and 7th issuessuggested by the defendant’s counsel. As regards the first order,the appellant’s contention is that, having found that there was adeficiency of stamp duty on the plaint, the District Judge shouldhave dismissed the plaintiff’s claim altogether. The only provisionof the law now in force relating to stamps on plaints appears to bethe provision of section 46 of the Civil Procedure Code, Section38 of Ordinance No. 23 of 1871 and section 34 of Ordinance No. 3of 1890 gave the power to Judges to require an insufficiently stampedpleading to be duly stamped, and when that was done, to proceedwith the action as if the pleading had been originally, duly stamped •but these Ordinances were repealed by Ordinance No. 22 of 1909,which contained no such provision as that, mentioned above.Section 37 of the Ordinance, I do not think, applies to pleadingsin cases. It refers to “ instruments tendered in evidence, ” andclearly a plaint does not answer to that description of document.So that when/in the case of a plaint under section 46 of the Codeand in the case of an answer under section 77, the Judge does notreject the pleading, but accepts it, the presumption iis that he hasadjudicated in favour of the party who has tendered the documentthe question of the sufficiency of the stamp thereon, and I doubtthat the adjudication in such a case can be interfered writh byanybody.- In the case, however, – of a plaint or answer beingaccepted per incuriam, that is to say, as the result of an inadvertentomission on the part of the Court to consider the question of thesufficiency of the stamp thereon, it may be that before any step inthe regular course of procedure is taken by the opposite party theCourt may return the pleading to be properly stamped ; but thisquestion need not be considered on this appeal, because we have ng(information from the District judge that the plaint in this case wasaccepted by him per incuriam, and no order returning the plaint was,in fact, made before the filing of the answer. When a Judge, havingconsidered the question of the sufficiency of stamp-duty, has accepteda plaint or answer, or has accepted it having inadvertently omittedto consider the question, the remedy, if indeed any exists, can onlybe by means of such action as the Attorney-General, as representing
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the Grown, to which all stamp duties are a debt, may be deemed to beentitled to take. It will be embarrassing to both the parties to anyaction and lead to disastrous results, if for instance; at a very latestage of the action a pleading can be thrown out for default of eitherparty to make good any deficiency- in stamp duty. Anyway, thesufficiency of the stamp on a plaint cannot be called in question as amatter of defence in an answer, any more than the fact that theplaint has not been “ distinctly, written on good and suitable paper, ”as required by section 40 of the Code. The answer can only containthe matter indicated in subjections (a) and (e) of section 75. It hasbeen argued that if that was so, an adjudication by the Judge thatthe plaint discloses a good cause of action cannot also be called inquestion when the plaint is once accepted* ; but it will be seen thatby sub-section (d) of section 75 the defendant is, .in effect, allowedto set forth any matter of law upon which he may rely for his'defence.
For the reasons that I have given above, it seems to me that thedefendant had no right to claim that the action be dismissed, oreven that the plaintiffs be required to supply the deficiency, if anyin stamp duty, but as the plaintiffs have acquieksed in the ordermade, I would do no more than dismiss the appeal.
[His Lordship then proceeded to the consideration of the secondorder appealed from.]
I-agree. With regard to the question of stamps, it is to beobserved that the Ceylon Stamp , Ordinance is based on the IndianStamp Act, with addition in the schedule of duties on lawproceedings. For these proceedings to be liable to duty under .theOrdinance they must be regarded as “ instruments ” under section4. Section 37 ■enunciates the principle that once “ an .instrumenthas been admitted in evidence ” it shall not, except as provided inthe section, be called in question at any stage of the same suit orproceeding on the ground that it is not duly stamped.
The latest Ordinance, No. 22 of 1909, does not, however, containany section similar in terms to section 84 of the repealed Ordinance,No. 3 of 1890. I see no reason why an order admitting a plaintshould not be regarded as an order admitting an. instrument inevidence. The.plaint is, to use the words of the Evidence Ordinance,a document produced for the inspection of the Court. It containsadmissions, and is a means by which a matter of fact may be provedas against the party making the admission. It must, it seems to me,‘ be regarded as evidence, and the order accepting it* can be reviewedonly as laid down in section 37 of the Stamp Ordinance'.