Biswajit Chakraborty v. Mira Sen Ray

Subhro Kamal Mukherjee, J.:— This is to consider an application under section 115 of the Code of Civil Procedure against the order No. 74 dated August 14, 2001 passed by Shri Amjad Ali, learned Civil Judge (Senior Division), Third Court at Alipore, District: South 24 Parganas in Title Suit No. 25 of 1998 whereby the learned trial Judge directed the plaintiff to produce the document-in-question, failing which, it was directed that, the suit would stand dismissed.

2. The brief facts leading to filing of the present revisional application before this court may be summarised as under:

(a) The plaintiff/petitioner instituted Title Suit No. 25 of 1998 in the said court seeking to enforce an agreement being joint venture agreement dated December 27, 1995 concerning premises No. 12, H.L Sarkar Road, Police Station: Regent Park, Calcutta-700070, District: South 24 Parganas.

(b) An application for temporary injunction under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure was filed in the said suit annexing a photocopy of the said agreement dated December 27, 1995. On the said application the learned trial Judge on March 26, 1998 passed an ad interim order of injunction, as prayed for in the said application, and, subsequently, the said application for temporary injunction was allowed and the interim order of injunction passed on March 26, 1998 was made absolute.

(c) On June 21, 2001 peremptory hearing of the suit was fixed and parties filed haziras. The plaintiffs witness No. 1, Biswajit Chakraborty, namely, the plaintiff himself, was ready for adducing evidence. On that date even before the said witness could step into the witness box, the defendant/opposite party raised an objection as to whether photocopy of the said agreement could be exhibited inasmuch as the same was impoundable, as proper stamp duty was not paid. It is contended that the defendant/opposite party had the occasion to raise the said objection as the learned advocate for the plaintiff wanted to produce a photocopy of the said agreement.

(d) The learned trial Judge fixed another date for hearing on the question of the stamp duty. The learned Judge, ultimately, by the order impugned directed the plaintiff to produce the document-in-question and for taking necessary steps, failing which, it was directed that, the suit would stand dismissed on the date fixed.

3. The learned Judge in the order impugned held as under:

i) That the disputed agreement between the parties for the development of the property was prepared on a ten rupees stamp paper and, therefore, the said agreement was not properly stamped and as such it was necessary to impound the said document before it has to be taken into evidence and marked as exhibit.

ii) The agreement was for development with a promoter and as per Schedule 1A, Item No. 5(d), it was necessary to pay stamp duty as a conveyance for the market value of the property.

iii) Therefore, on the basis of the said agreement the suit filed by the plaintiff was not maintainable unless he expressed his readiness to pay the duty as required as per Item No. 5(d) of Schedule 1A.

iv) The plaintiff has not filed the original document and, therefore, if he wanted to proceed with the suit, he must file the said agreement expressing his willingness to pay the stamp duty and penalty, as document was required to be impounded.

v) Without complying with the requirements of sections 33 and 35 of the Indian Stamp Act, 1899, the suit would not be proceeded with as there was no original document before the court and in the absence of the original document the suit was liable to be dismissed with costs.

4. Being aggrieved the plaintiff has came up with this revisional application.

Shri Asish Chandra Bagchi, learned advocate, appearing in support of the revisional application, argued that the learned trial Judge acted without jurisdiction in directing the plaintiff to produce the document-in-question in orginal and in directing, in default thereof, the suit should stand dismissed. Shri Bagchi argued till the original document is produced before the court for receiving the same as evidence in the suit, a court has no jurisdiction to direct impounding of the document. Shri Bagchi, further, argued that the learned trial Judge was wrong in assessing the classification of the document and the findings that the document was insufficiently stamped and covered under Item No. 5(d) of Schedule 1A of the Indian Stamp Act, 1899, as applicable in West Bengal, was without jurisdiction. Shri Bagchi finally argued that the learned trial Judge failed to appreciate the scope of the relevant sections of the Indian Stamp Act, 1899, that is, sections 33, 35, 38, 39, 40 & 61 and passed the order impugned without jurisdiction.

5. Shri Jiban Ratan Chatterjee, learned advocate, appearing for the opposite party, however, supported the order of the learned trial Judge. However, I must put it on record that Shri Chatterjee, in his usual fairness, submitted that the order directing dismissal of the suit in default of filing of the original document was not proper. Nevertheless, Shri Chatterjee argued that along with the applications for temporary injunction a photocopy of the document was annexed as anriexure-A to the said application and, therefore, the said document was before the court and as such the court had jurisdiction to direct impounding the document as the plaintiff voluntarily produced a photocopy of the document before the court. Shri Chatterjee argued that it was the plaintiff who has to pay the stamp duty and penalty as he has instituted the suit for enforcement of such agreement. Shri Chatterjee argued that the plaintiff/petitioner has not come to the court with clean hands; the learned trial Judge fixed a date for hearing on the question of stamp duty and, after giving fullest opportunity of the hearing to the parties, the order impugned has been passed. At no stage the plaintiff took any objection regarding the procedure adopted by the court, but only when the order went against the plaintiff, the plaintiff approaches this court with this revisional application. Shri Chatterjee cited the decision in the case of Chandrama Singh v. Awadh Bihari Singh, reported in AIR 1959 Patna 353, in support of his contentions that the court has power to direct a party to produce a document if it is relevant for the enquiry in the suit and to order impounding of the same. Shri Chatterjee cited the decision in the case of Prithi Chand v. State of Himachal Pradesh, reported in AIR 1989 SC 702 and argued that copy made by one uniform process of the original document is admissible being primary evidence within the explanation 2 of section 62 of the Indian Evidence Act, 1872. As the photocopy of the document was already on the record and is primary evidence, the learned trial Judge was justified in passing an order directing impounding of the document.

6. In order to appreciate the rival contentions advanced before me, I am to consider the relevant provisions of the Indian Stamp Act, 1899 as amended in its application to West Bengal. The relevant provisions, that is, sections 33, 35, 38, 39, 40 and 61 run as under:

33. Examination and impounding of instruments.—(1)(a) Every persons having, by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.

(b) Notwithstanding anything contained in section 31, but without prejudice to the provisions of clause (a) of this sub-section, the Collector, before whom any instrument is brought under section 31 for determining the duty with which the instrument is chargeable, shall, if it appears to him that such instrument is not duly stamped, impound the same:

Provided that nothing contained in this clause shall be deemed to authorise the Collector to impound any instrument, which has not been executed but is brought to him under section 31 for determining the duty with which the instrument is chargeable or any instrument, which he is authorised to endorse under section 32.

(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed:

Provided that—

(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);

(b) in the case of a Judge of High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the court appoints in this behalf.

(3) For the purpose of this section, in cases of doubt,—

(a) the State Government may determine what offices shall be deemed to be public offices; and

(b) the State Government may determine who shall be deemed to be persons in charge of public offices.

(4) Where deficiency in stamp duty is noticed from the copy of any instrument, the Collector may, suo motu or on a reference from any Court or from the Commissioners of Divisions or from any officer authorised by the Board of Revenue in that behalf, call for the original instrument for the purpose of satisfying himself as to the adequacy of the duty paid thereon, and the instrument so produced before the Collector shall be deemed to have been produced or come before him in the performance of his functions.

(5) In case the instrument is not produced within the period specified by the Collector, he may require payment of deficit stamp duty, if any, together with penalty under section 40 on the copy of the instrument:

Provided that no action under this sub-section shall be taken after a period of four years from the date of execution of the instrument.

35. Instruments not duly stamped inadmissible in evidence, etc.— No instrument 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 not exceeding ten naya paise only, or a bill or exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, 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 often times such duty or portion;

(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);

(e) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.

38. Instruments impounded how dealt with.— (1) When the person impounding an instrument under section 33 has by law or consent of parties, authority to revive evidence and admits such instruments in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levided in respect thereof, and shall send such amount to the Collector or to such person as he may appoint in this behalf.

(2) In every other case, the person so impounding an instrument shall send it in orginal to the Collector.

39. Collector's power to refund penalty paid under section 38, sub-section (1).—

(1) When a copy of an instrument is sent to the Collector under section 38, sub-section (1), he may, if he thinks fit refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument.

(2) When such instrument has been impounded only because it has been written in contravention of section 13 or section 14, Collector may refused the whole penalty so paid.

40. Collector's power to stamp instruments impounded.—(1) When the Collector impounds any instrument under section 33, or receives any instrument sent to him under section 38, sub-section (2), not being in instrument chargeable with a duty not exceeding ten naya paise only or a bill of exchange or promissory note, he shall adopt the following procedure:—

(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be;

(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds of falls short of five rupees:

Provided that, when such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.

(2) Every certificate under clause (a) of sub-section (1) shall, for the purpose of this Act, be conclusive evidence of the matters stated therein.

(3) Where an instrument has been sent to the Collector under section 38, sub-section (2), the Collector shall, when he has dealt with it as provided by this section, return it to the impounding officer.

61. Revision of certain decisions of Courts regarding the sufficiency of stamps.—(1) When any Court in the exercise of its civil or revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.

(2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.

(3) When any declaration has been recorded under sub-section (2), the court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.

(4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under section 42, or in section 43, prosecute any person for any offence against the Stamp-law, which the Collector considers him to have committed in respect of such instrument:

Provided that—

(a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty;

(b) except for the purpose of such prosecution, no declaration made under this section shall affect the validity of any order admitting any instrument in evidence, or of any certificate granted under section 42.

7. In the case of Sashi Mohan Saha v. Kumud Kumar Biswas, reported in 21 CWN 246, Sir Asutosh Mookherjee, speaking for the Division Bench, observed that before action could be taken under sub-section (1) of section 33, it must be established that the instrument-in-question was produced or came before the officer mentioned therein in the performance of his functions.

8. The aforesaid observations have been made in connection with a suit for recovery of money on a hatchitta. The plaintiff filed along with the plaint the hatchitta, which was in a bound volume, which contained a large number of hatchittas executed by other persons in favour of the plaintiff. The hatchitta on which the suit was brought being found to be insufficiently stamped, the learned Munsif examined the other hatchittas and impounded them under section 33 finding them to be insufficiently stamped.

9. In the case of Thakar Das v. The Crown, reported in AIR 1932 Lahore 495, a Special Bench of the said High Court held that it was not sufficient for the purpose of section 33 that the document should somehow be produced or come before the officer mentioned in the said section. It was essential that it should be produced or come before him in the performance of his functions and a mere production in compliance with an illegal demand would not confer authority on him to take action under section 33.

10. A learned single Judge of the said High Court in the case of Ujjal Singh-Sunder Singh v. Ahmad Yar Khan, reported in AIR 1936 Lahore 985, held that mere production of a copy of a document or its transliteration without an attempt to prove it or without an attempt to tender it formally in evidence did not amount to the production of the document before a person concerned nor did the document under such circumstances came before the person concerned in the performances of his functions so as to attract the provisions of section 33.

11. Another learned single Judge of the said High Court in the case of Lala Uttam Chand v. Perman Nand reported in AIR 1942 Lahore 265, held that no court has any right to compel any party to produce a document against his wishes. If the document was material, the party not producing it would suffer the consequences. The word ‘produced’ as used in section 33 means produced in the ordinary course of law and not produced under the compulsion. If this were not so, a court would be competent to conduct a search in the house of a party and seize all documents insufficiently stamped for the purpose of impounding them. It was highly improper for a court to compel a party to produce original document with a view to impound the document, because the court has been informed that it was not sufficiently stamped. Such action could not but be deprecated in most unambiguous terms. It was open to the party's counsel to refuse to obey the order of the court in this respect. Where the court illegally impounded a document it could not be sent to the Collector at all and, therefore, the Collector to whom the document has been sent could not impound it of his own accord.

12. Now, I propose to deal with the case cited by Shri Chatterjee reported in AIR 1959 Patna 353. In the said case one Sheo Shankar Pandey obtained two money decrees against the judgment-debtors and for realisation of the decrees he levied two execution cases. Subsequently, however, he assigned the said two decrees to Chandrama Singh under a registered deed of assignment describing the same as transfernama. On the strength of the said assignment the said Chandrama filed an application for execution of one of the decrees. The executing court directed Chandrama to produce the registered deed of assignment and the same was filed in court. The execution case proceeded and notices under Rule 16 of Order 21 of the Code of Civil Procedure were issued. The opposite party appeared and raised an objection that the deed of assignment was insufficiently stamped whereupon the executing court directed the sheristedar to examine the document and to submit a report as to whether the stamp duty and penalty were liveable. The sheristedar submitted his report assessing stamp duty and penalty and the court directed the decree-holder to deposit the duty and penalty as indicated in the report of the sheristedar. Being aggrieved the decree-holder moved the High Court in revision. The Division Bench of the Patna High Court observed that section 33 did not specify how the document is to be produced. There was no doubt that the production of a document under compulsion was not a production as envisaged in sub-section (1) of section 33. At the same time it would be wrong to restrict the operation of section 33(1) to voluntary production only. When the expression was produced was considered in juxtaposition with the expression ‘comes in the performance of his functions’ along with the object of this Act, production of a document in obedience to the order of the Court was, also, a production within the meaning of section 33(1).

13. The Division Bench of the Patna High Court heavily relied upon the decision of the Division Bench of a Madras High Court in the case of King-Emperor v. Balu Kuppayyan*, reported in ILR 25 Madras 525. In that case a complaint having been made against a person for having committed offences under sections 64(c) and 68(c) of the Stamp Act of 1899, the Magistrate issued a search warrant, under which certain documents were seized and impounded under section 33(2) of the Act. In was contended that the action of the Magistrate in impounding them was illegal, because the documents did not come before him in the performance of his functions within the meaning of section 33(1). The Madras High Court held that the word ‘comes’ is sufficiently wide to include the production of documents under a search warrant issued by the Magistrate.

14. The decision of the Patna High Court (supra) is distinguishable on facts inasmuch as when the court passed an order directing payment of duty and penalty, the original document was already before the court and relied upon by the party in support of his contentions that he was the assignee of the decrees and as such was entitled to proceed with the matter and in so far as the Madras case is concerned, it does not fit in with the facts of the case in hand as the said case can easily be distinguished from the present case inasmuch as there the Magistrate had legal authority to issue a search warrant and could compel the party to produce the document.

15. In the case of Varghese v. State of Kerala, reported in AIR 1989 Kerala 248, it was observed the word impound has not been defined in the Stamp Act. If the document was merely presented along with the plaint, it could not be said that the document was produced as contemplated under section 33. If the plaintiff intended to use the document as an item of evidence, then only the court could consider that it was a document produced and the court could impound the same. The court has to judicially detmine the matter as soon as the document is tendered in evidence and before it is marked as an exhinbit in the case.

16. My reading of the provisions of sections 33, 35, 38, 39, 40 & 61 of the Indian Stamp Act, 1899 is that when a document is tendered in evidence by a party and an objection is raised by the other side that the document is insufficiently stamped, at that stage, the court assumes the jurisdiction to impound the document as it was obligatory to apply the mind of the court in accordance with the relevant provisions of the said Act. The object of section 33 is to protect the revenue and as such the court or such person, as referred to in the said section, must, however, exercise the powers as envisaged under the said section, if necessary, suo motu, irrespective of the raising of objection by any of the party.

17. Section 33 speaks that every person having, by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. However, in view of the provisions of section 35, court or such person can admit an insufficiently stamped document in evidence on payment of the sufficient duty with which the same is chargeable together, with a penalty. Therefore, it was the duty of the court or such person to assess the duty with which the document is chargeable and the penalty to be paid by the person, who produces the said document before the court or such person. Once the said document is admitted in evidence, under sub-section (1) of section 38, it is obligatory to send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof and, also, the amount levied to the Collector or to such person as he may appoint in his behalf. In the event, the Collector is dissatisfied with the assessment of the amount of stamp duty and penalty imposed thereon by the court or such person, the Collector may resort to the provision of section 61 of the said Act and approach the appeal court for redress of his grievance. However, under section 39 the Collector has power to refund any portion of the penalty in excess of five rupees, which has been paid under sub-section (1) of section 38 in respect of such document. If the party, who produces such document for being admitted in evidence, is aggrieved by the order, as regards the classification of the document or the amount of duty and penalty assessed, such party may pray to the court or to such person to send the document in original to the Collector under sub-section (2) of section 38 of the said Act. When a document is sent to the Collector under sub-section (2) of section 38, the Collector receives such instrument send to him and he shall adopt procedures as specified in section 40. Every certificate issued under clause (a)of sub-section (1) of section 40 by the Collector shall, however, for the purposes of the Indian Stamp Act, 1899 be conclusive evidence of the matters stated therein. However, because of sending of the document to the Collector, be it under sub-section (1) or sub-section (2) of section 38 of the Indian Stamp Act, 1899, it will not be obligatory for the court to stay the suit pending the decision of the Collector.

18. In the case of Sri Om Prakash Gupta v. Shrimati Saraswati Shaw, reported in 2002 (1) CLJ 452, Bhattacharya, J. held as under:

“It is therefore clear that a court cannot force a party, producing a document, to pay the duty and penalty assessed by it and to have the document admitted in evidence. It is for the party to elect whether it will accept the assessment of the Court and will get the document admitted in evidence or to apply to the Court to send the original document under section 38; but if a party decides to apply for sending the document in terms of section 38(2) of the Act, it cannot, at the same time, ask the Court to stay the suit pending the decision by the Collector under section 40.

The scheme provided in the Stamp Act is ex stive and does not approve such course.”

19. A Division Bench of this Court in The Empress v. Soddanund Mahanty, reported in I.L.R 8 Calcutta 259, held that it appeared from the reading of the provisions of the said Act that it was the intention of the legislature, in the first place, to compel the payment of stamp duty with penalty. By the payment of stamp duty and penalty, the revenue would be protected from loss; an exaction of a small money by way of penalty would be a sufficient punishment in the large majority of the case in which the omission to stamp at all, or stamp duty, arose from negligence, inadvertence or ignorance of the provisions of the stamp law.

20. Now, I deal with the last part of the submissions of Shri Chatterjee that xerox/photo copy of a document is primary evidence and as a xerox copy of the agreement has been filed before the court, the court had jurisdiction to impound the same. Shri Chatterjee relied upon the Supreme Court decision reported in AIR 1989 SC 702 where the Supreme Court held that the carbon copy prepared by one uniform process was admissible being primary evidence within explanation 2 of section 62 of the Indian Evidence Act, 1872.

21. In order to appreciate such contentions of Shri Chatterjee it is necessary to consider the provisions of sections 62 and 63 of the Indian Evidence Act, 1872. The said provisions run as under:

“62. Primary Evidence.— Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.— Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the orginal.

63. Secondary evidence.—Secondary evidence means and includes—

(1) certified copies given under the provisions hereinafter contained;

(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.”

22. It is settled law that the carbon copies produced by type-writers may, for all practical purposes, be regarded as equivalent, though the impressions on the lower sheets are likely to be imperfect. They are prepared by same stroke, which makes the surface impression. In the aforesaid background the Supreme Court held that the carbon copy could be admitted as primary evidence.

23. I am unable to accept the contention of Shri Chatterjee that photocopy/xerox copy of a document can be admitted in evidence as primary evidence and I hold that photocopy is not admissible as primary evidence under any provision. In view of the clear language of sub-section (2) of section 63 of the Indian Evidence Act, 1872, photocopy/xerox copy is secondary evidence and can never be regarded as primary evidence. In this regard I draw my inspirations from the decisions in the case of Ramesh Verma v. Shrimati Lajesh Saxena, reported in AIR 1998 Madhya Pradesh 46 and Arulmigu Visweswara Swami and Veeraraghaua Perumal Temples v. R.V.E Venkatachala Gounder, reported in 1996 (4) Current Civil Cases 347 (Mad.).

24. I, therefore, hold that the learned trial Judge acted without jurisdiction in directing the plaintiff to produce the original document for the purpose of impounding the same. Mere production of the photocopy of the document along with the application for temporary injunction or otherwise was not enough to attract the provisions of section 33(1) of the said Act. In this case the document has been illegally impounded and has been sent to the Collector and, therefore, the Collector to whom the document has been sent cannot impound it of his own accord.

25. Accordingly, I set aside the order impugned in the revisional application and allow the revisional application without any order as to costs.

26. Since the peremptory hearing of the suit has commenced, I direct the learned trial Judge to expedite the hearing of the suit as far as possible and he should make all endeavours to see that the suit is disposed of before the commencement of the annual vacation of the civil courts.

27. Let xerox plain copy of this order duly countersigned by the Assistant Registrar (Court), be supplied to the parties on usual undertaking.

Revisional application allowed.

S.K.P