Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 221 (MP)

Rajesh Kumar v. Gajendra Kumar

2007-02-22

SHANTANU KEMKAR

body2007
ORDER 1. With consent heard finally. The petitioner has filed this petition under Article 227 of the Constitution of India against the order dated 10.11.2005 (Annexure P-1) and the order dated 14.12.2006 (Annexure P-2) passed by the II Additional District Judge, Ratlam in Civil Suit No. 2A/2006, whereby the learned Judge has rejected the petitioner's applications filed under section 41 and section 38 (2), respectively, of the Indian Stamps Act, 1899 (for short the Act). 2. Briefly stated the petitioner filed a Civil Suit No. 20.2.2006 for specific performance of an agreement to sale dated 15.12.2005 against the respondents. On being noticed the respondents appeared before the trial Court and filed their written statement. After filing of his affidavit under Order 18 Rule 4 of the Code of Civil Procedure (for short CPC), the petitioner moved an application seeking return of the original agreement dated 15.12.2005 stating therein that the same is not sufficiently stamped and, therefore, it be returned to him so that he may approach before the Collector of Stamps for making deficit stamps good under the provisions of section 41 of the Act. 3. The aoresaid application was rejected by the trial Court vide order dated 10.11.2006. Thereafter the petitioner submitted another application requesting the trial Court that the said agreement be sent to the Collector. However, the said application was also rejected by the trial Court on the same analogy. Feeling aggrieved by the said orders the petitioner has filed this petition. 4. The trial Court rejected the petitioner's applications on the ground that as since the document has been filed in the Court and as the said document contains the valuation of the suit property, there is no necessity of sending the same to the Collector. It also held that the provisions of section 41 of the Indian Stamps Act are attracted only when the matter is not pending before the Court and where the valuation of the property is not mentioned in the documents. 5. Having heared the learned counsel for the parties, in my considered view, this petition deserves to be allowed. 6. Chapter IV of the Act deals with instruments not duly stamped. Sections 33, 35, 38 and 41 are in regard to examination and impounding of instruments, instruments not duly stamped are inadmissible in evidence, etc, instruments impounded how to dealt with and instruments unduly stamped by accident. 7. 6. Chapter IV of the Act deals with instruments not duly stamped. Sections 33, 35, 38 and 41 are in regard to examination and impounding of instruments, instruments not duly stamped are inadmissible in evidence, etc, instruments impounded how to dealt with and instruments unduly stamped by accident. 7. On careful reading of the aforesaid provisions of the Act it is clear that if the document is merely presented alongwith plaint, it cannot be said that document was produced as contemplated under section 33 of the Act. Only if the party filing the document wants it to be admitted in evidence then the Court is required to collect the duty and penalty and then admit it in evidence but if the party instead of requiring the document to be admitted in evidence seeks return of the same so as to produce it before the Collector for producing under section 41 of the Act, the said prayer cannot be refused by the Court as the same would amount to compelling the party to pay duty and penalty and have admitted it in evidence. 8. A perusal of the impugned orders shows that the trial Court has examined the documents and found that it would be of no use to return the document for presenting it before the Collector. The matter under section 41 of the Act was to be considered by the Collector on its own merits. The Court was obliged to consider and decide the petitioner's prayer only in regard to the return of documents keeping in mind the stage at which the prayer has been made. Since the document was not impounded and was merely filed along with the plaint, the Trial Court ought to have returned the said document to the petitioner for the purpose referred to in his application under section 41 of the Act. Refusal of the petitioner's application for return of the document at that stage is wholly misconceived as admittedly the petitioner did not tender the said document for evidence. 9. In view of the aforesaid, the impugned orders (Annexure P-1 and P-2) passed by the trial Court deserves to be and are hereby quashed. The trial Court is directed to return the aforesaid agreement of sale dated 15.12.2005 to the petitioner for its presentation under section 41 of the Act before the Collector. 9. In view of the aforesaid, the impugned orders (Annexure P-1 and P-2) passed by the trial Court deserves to be and are hereby quashed. The trial Court is directed to return the aforesaid agreement of sale dated 15.12.2005 to the petitioner for its presentation under section 41 of the Act before the Collector. On petitioner's presenting the said agreement the Collector shall decide the matter within two months from the date of receipt of the said document along with appropriate application. Needless to observe that the Collector shall examine the matter in accordance with law uninfluenced by any observation made by this Court in this petition. For a period of three months the further proceedings of the trial Court shall remain in abeyance. 10. The petition is allowed. No orders as to cost.