RIAZ HUSSAIN Versus BOARD OF REVENUE PUNJAB through Senior Member

MUHAMMAD KHALID MEHMOOD KHAN, J .---The petitioner purchased non-judicial stamp papers worth Rs.2,00,000 on 26-3-2007 for the purpose of execution of a sale-deed, the sale-deed was written on non-judicial papers was executed. After its execution it was to be presented before the Sub-Registrar Sialkot for its registration but before its presentation to the Sub-Registrar a defect was found in the title of the vendor and as such the sale deed was not presented for registration and ultimately the bargain was dropped.

2. The petitioner submitted an application to respondent No. 3 on 26-5-2007 for refund of non-judicial stamp papers valuing Rs.2,00,000. The respondent No.3 vide order dated 14-6-2007 filed the petitioner's application for refund on non-judicial stamp papers on the ground that it is barred by time. For further clarity the order passed by respondent No.3 is reproduced as under:--

3. Aggrieved by the said order petitioner has filed the instant petition. Notices were issued to the respondents. They filed parawise comments and claimed that refund of non-judicial stamp papers was refused under section 49(d)(5) of the Stamp Act 1899 which provides limitation for refund of non-judicial stamp papers as 60 days. The petitioner's application under section 50(3) of the Stamp Act was not justified. For appreciating the true letter and spirit of two provisions of Stamp Act these are reproduced as under:-

"49. Allowance for spoiled stamps . Subject to such rules as may be made by the Provincial Government as to the evidence to be required, or the enquiry to be made, the Collector may, on application made within the period prescribed in section 50, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned:--

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(d) the stamp used for an instrument executed by any party thereto which:-

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(5) by reason of the refusal of any person to act under the same or to advance any money intended to be thereby secured, or by the refusal or non-acceptance of any office thereby granted, totally fails of the intended purpose;

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50. Application for relief under section 49 when to be made : The application for relief under section 49 shall be made within the following periods, that is to say:--

(1) In the cases mentioned in clause (d)(5), within two months of the date of the instrument;

(2) In the case of a stamped paper on which no instrument has been executed by any of the parties thereto, within six months after the stamp has been spoiled;

(3) In the case of a stamp paper in which an instrument has been executed by any of the parties thereto, within six months after the date of instrument, or, if it is not dated, within six months after the execution thereof by the person by whom it was first or alone executed:

Provided that:--

(a) when the spoiled instrument has been for sufficient reasons sent out of Pakistan the application may be made within, six months after it has been received back in Pakistan.

(b) wherefrom unavoidable circumstances, say instrument for which another instrument has been substituted cannot be given up to be cancelled within the aforesaid period, the application may be made within six months after the date of execution of the substituted instrument."

4. It is admitted fact between the parties that non-judicial stamp papers were purchased from the Government Treasury. It is also an admitted fact that the sale-deed was written and executed by the vendor. The question why the sale-deed was not registered has nothing to do with the refund of non-judicial stamp papers. Section 50(3), prescribed a period of 6 months for any stamp paper which has been executed by any of the parties through an instrument. It is an admitted fact that petition for refund of non-judicial stamp papers was submitted on 26-5-2007 along with an application under section 5 of the Limitation Act as an abandon caution. There is no need to file an application under section 5 of the Limitation Act as six months prescribed by law were not expired or consumed. The language of section 50(3) is clear and as such the order impugned was wholly without any lawful authority and is not sustainable in the eye of law. The order impugned being illegal and without lawful authority is set aside and declared without any lawful authority declaring that the petitioners are entitled for refund of non-judicial stamp papers valuing Rs.2,00,000 in accordance with law.

A.R.K./R-50/L Petition accepted.