037-SLLR-SLLR-1999-V-3-YOUSOOF-MOHAMED-AND-ANOTHER-v.-INDIAN-OVERSEAS-BANK.pdf
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YOUSOOF MOHAMED AND ANOTHER
v.INDIAN OVERSEAS BANK
COURT OF APPEALEDUSSURIYA, J.,JAYASINGHE, J.
A. NO. 378/94 (F)
C. COLOMBO NO. 6346/M/1JUNE 18, 1998
Civil Procedure Code, s. 39, s. 46, s. 46 (2)h – Stamp Duty Act, No. 43 of 1982,S. 33 (1), 33 (2) – Plaint not duly stamped.
It was contended by the defendant-appellant that the annexures which were filedwith the plaint has not been stamped, and as such the plaint should have beenrejected.
Held:
There is no provision which directs the rejection of a plaint which is notduly stamped or a dismissal of an action on that basis;
Where a plaint is insufficiently stamped due to any annexures which havebeen filed as part and parcel of the plaint, not being duly stamped, theCourt cannot reject or refuse to entertain the plaint or dismiss the action,but must necessarily call for the deficiency in stamps.
If the plaintiff fails to supply the deficiency in stamps within a time fixedby Court, the plaint may be rejected.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Kishnappa v. Rutnam – 17 NLR 230.
Adilappa Chettiar v. Thomas Cook & Sons – 31 NLR 385 at 404.
CA
Yousoof Mohamed and Another v. Indian Overseas Bank(Edussuriya, J.)
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A. P. Niles with Arjuna Kurukulasuriya for defendant-appellant.Prasanna Jayawardena for the plaintiff-respondent
Cur. adv. vult.
July 17. 1998.
EDUSSURIYA, J.
This is an appeal from the judgment of the learned Additional DistrictJudge of Colombo in an action instituted by the plaintiff-respondentto recover two sums of money as prayed for in the plaint with interest.
The only contention of the appellant's counsel at the hearing ofthis appeal was that the annexures A1 to A5 which were filed withthe plaint have not been stamped and as such the plaint should havebeen rejected. It was not counsel's contention that A1 to A5 aloneshould have been rejected.
Issue No. 10 had been raised at the trial on the basis that theaction should be dismissed as A1 to A5 annexed to the plaint havenot been stamped.
In the written submissions tendered on 10th July, 1998, counselfor the appellant has with reference to the Stamp Duty Act, No. 43of 1982, drawn a distinction between documents and instrumentsand submitted that A1 to A5 were instruments and as such sections33 (1) and 33 (2) were applicable to their admissibility in evidence,it must be borne in mind that counsel's contention at the hearing ofthe appeal on 18th June, 1998, was in fact that the plaint wasinsufficiently stamped as the annexures A1 to A5 which were partand parcel of the plaint were not duly stamped and as such shouldhave been rejected and the plaintiff-respondent's action dismissed.
Section 39 of the Civil Procedure Code sets out that every actionshall be instituted by presenting a duly stamped plaint. However,there is no provision which directs the rejection of a plaint which isnot duly stamped or a dismissal of an action on that basis. Section
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46 (2) sets out the circumstances under which a Court may refuseto entertain a plaint or reject a plaint but section 46 (2) does notset out that a Court shall refuse to entertain or reject a plaint whenit is not duly stamped.
Thus, where a plaint is insufficiently stamped due to any annexureswhich have been filed as part and parcel of the plaint not being dulystamped, the Court cannot reject or refuse to entertain the plaint ordismiss the action but must necessarily call for the deficiency instamps, and this happens regularly in the original courts and summonsare not issued until the deficiency is supplied. However, where aplaintiff fails to supply the deficiency in stamps within a time fixedby Court, the plaint may be rejected (Section 46 (2) {h)). In thisinstance, Court has not called upon the plaintiff to supply any de-ficiency in stamps. It is, therefore, my considered view that if therewas a deficiency the defendant could have asked for a stay ofproceedings until the deficiency in stamps is supplied. This, thedefendant had failed to do, and I am, therefore, of the view that itis now too late in the day to canvass that question. It was neverthe appellant's counsel's contention that the annexures A1 to A5 werewrongly admitted in evidence at the trial. However, as there is a hintof such a suggestion in his written submissions it is appropriate tomention that A1 to A5 were marked in evidence at the trial as P4,P5, P6, P10 and P12 respectively, and that no objection was takento their production. Nor was there such an objection taken when theplaintiffs counsel closed the plaintiffs case reading in evidence P4,P5, P6, P10 and P12. Therefore, the appellant's counsel cannot nowcanvass the admissibility of the said documents in evidence at thetrial vide Kishnappa v. Rutnarrt", Adilappa Chetti v. Thomas Cookand Sons!*.
For the above-mentioned reasons, the appeal is dismissed withcosts fixed at Rs. 4,200.
JAYASINGHE, J. – I agree.
Appeal dismissed.