Summary
A mechanically admitted, insufficiently stamped power of attorney could be recalled and impounded under the trial court’s inherent jurisdiction. The bar against questioning an admitted instrument presupposes judicial determination of admissibility; merely marking it without applying judicial mind does not attract that bar. The Supreme Court restored the trial court’s order and directed expeditious disposal of the suit.
Issues
- Whether Section 35 barred recall of an insufficiently stamped instrument marked without judicial consideration.
- Whether the trial court could invoke Section 151 CPC rather than review jurisdiction.
- Whether Section 58 supplied the exclusive remedy on these facts.
Provisions considered
- Sections 33 and 34, Karnataka Stamp Act, 1957The receiving court must examine stamp sufficiency and impound an insufficiently stamped instrument; failure by counsel to object does not dispense with these duties. (¶¶ 11, 13, 14, 21)
- Section 35, Karnataka Stamp Act, 1957Finality attaches to an admission based on judicial determination. Mechanical marking without applying judicial mind did not bar recall in this case. (¶¶ 12, 14, 15, 16, 17, 18)
- Section 58, Karnataka Stamp Act, 1957The statutory supervisory remedy did not govern where no determination that the instrument was duly stamped or required no duty had been made. (¶¶ 11, 20)
- Section 151, Code of Civil Procedure, 1908The inherent power to prevent injustice and abuse permitted recall of the mechanical admission; the exercise was distinct from review under Section 114 and Order XLVII. (¶¶ 10, 19)
Held
- Sections 33 and 34 impose an obligation on the court to examine stamp sufficiency and impound an instrument that is not duly stamped. That statutory responsibility remains even when the opposing party does not object at the time of tender. (¶¶ 13, 14, 21)
- Once admissibility has been judicially determined, Section 35 ordinarily prevents reopening admission in the same proceeding, whether that determination was right or wrong, subject to Section 58. But admission through inadvertence, without applying judicial mind, stands on a different footing. (¶¶ 14, 15, 16, 18)
- The trial court expressly acknowledged that it had not considered admissibility before marking the power of attorney. Counsel’s absence when it was tendered and the ensuing application exposed a mechanical admission rather than a concluded judicial determination. Section 35 therefore did not prevent corrective action. (¶¶ 17, 18, 19)
- The application was properly considered under Section 151 CPC to recall an order causing injustice. It was unnecessary to treat the application as a statutory review under Section 114 and Order XLVII merely because it sought correction of an earlier order. (¶¶ 10, 19)
- Section 58 was not the appropriate remedy because the trial court had never determined that the instrument was duly stamped or did not require stamp duty. The High Court’s insistence upon that remedy was erroneous. (¶ 20)
- The High Court order was set aside and the trial court’s order allowing recall and impounding restored. The trial court was requested to dispose of the longstanding suit expeditiously. (¶¶ 22, 23)
Result
Appeal allowed without costs; High Court order set aside, trial court order restored and expeditious disposal of the suit requested.