THE HON’BLE SRI JUSTICE D.S.R.VARMA C.R.P.No.6319 of 2005 ORAL ORDER: Despite service of notice to the learned counsel appearing for the respondent, before the Court below, none appears for the respondent nor there is any representation on his behalf. 2. Admittedly, the suit is pending before the Court below. Hence, service on the learned counsel appearing for the respondent, before the Court below, is taken as ‘valid service’ and in spite of the same, none appears for the respondent nor there is any representation on his behalf. 3. Heard the learned counsel appearing for the petitioner. 4. This Civil Revision Petition is directed against the order and decree, dated 18.10.2005, passed by the Junior Civil Judge, Bantumilli, dismissing the application I.A.No.557 of 2005 in O.S.No.245 of 2003, filed under Order-13 Rule-8 of the Code of Civil Procedure, seeking to impound the receipt, which was filed by the petitioner therein, along with the written statement, and to allow him to deposit the required stamp duty ad penalty, as required by the provisions of the Indian Stamp Act (for brevity “the Act”), enabling him to get the same marked in the said suit, pending disposal of the suit. 5. Petitioner is the defendant and the respondent is the plaintiff in the suit, before the Court below. 6. For the sake of convenience, in this order, the petitioner and the respondent will be referred to as “the defendant” and “the plaintiff”, respectively. 7. The question involved in this Civil Revision Petition is – whether a particular document, which is found to be insufficiently stamped, is admissible in evidence, if so, whether the Court is at obligation to send the document to the competent authority for impounding the same, on an application made by the defendant? 8. It appears that the defendant has sought to introduce a document during the trial of the suit, which was objected to by the plaintiff on the ground that the said document was insufficiently stamped and introduction of such document is impermissible as postulated under Section 35 (i) of the Act. 9. In view of the matter, it further appears that the defendant had filed an application before the Court below seeking to send the document to the competent authority in order to impound the same. 10. This question had already fallen for consideration before a Division Bench of this Court in CHINTALAPUDI ANNAPURNAMMA vs. ANDUKURI PUNNAYYA SASTRY, [1] wherein it was held that the party who produced the insufficiently stamped documents cannot be insisted to pay duty and penalty and get the document admitted in evidence and that it is for the party either to get the document impounded and marked or to take back the same, as prescribed by the procedure contemplated under Section 38 (1) of the Act. The document can be impounded by the Court and admit the same on payment of levied duty and penalty. 11. Further sub-section (2) of Section 38 of the Act postulates that in every other case, the person so impounding an instrument shall send it in original to the Collector. 12. In fact, it is an option provided under sub-section (2) of Section 38 of the Act. Instead of duty being levied by the Court, if the party makes an application under Section 38 (2) of the Act, the Court has to imperatively send the document to the competent authority for impounding and levying penalty. 13. In the present case also, it appears that the defendant had already made an application to the Court below seeking to send the document to the competent authority i.e., the Collector, for impounding the same. Therefore, it is for the competent authority, under Section 40 of the Act, to conduct enquiry and levy the penalty, if need be, and that the Court cannot withhold the document. 14. Therefore, it is to be held that the Court has no authority to dismiss an application filed for this purpose. Any such application, if filed, shall have to be treated as if filed under sub- section (2) of Section 38 of the Act and the procedure envisaged under the Act shall be followed and that the Court cannot compel the party either to pay the penalty imposed by the Court or can dismiss such an application, filed seeking to send the document to the competent authority, for the purpose of impounding the same. 15. In view of the above decision (supra), the present Civil Revision Petition is liable to be allowed. 16. Accordingly, the Civil Revision Petition is allowed, at the stage of admission, setting aside the impugned order, dated 18.10.2005, passed by the Court below, and consequently the application I.A.No.557 of 2005 in O.S.No.245 of 2003, is allowed. However, there shall be no order as to costs. ______________________ JUSTICE D.S.R.VARMA 21ST AUGUST 2009 LMV THE HON’BLE SRI JUSTICE D.S.R.VARMA C.R.P.No.6319 of 2005 21ST AUGUST 2009 [1] 2000 (3) ALT 159