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Karnataka High Court · body

2010 DIGILAW 1145 (KAR)

H. Krishnappa v. M. D. Ashwathnarayan Singh

2010-11-04

A.N.VENUGOPALA GOWDA

body2010
Judgment :- 1. The respondent/plaintiff has filed O.S.No. 9714/2006 in the City Civil Court, Bangalore, against the petitioner/defendant for a decree granting specific performance of the agreement to sell dated 25.11.2004 and for permanent injuction in respect of the property described in the plaint schedule. The petitioner has filed written statement and has contested the suit. Issues having been raised based on the material pleadings, trial of the suit has taken place. 2. Petitioner filed I.A No.3 under Sections 33 & 34 of the Karnataka Stamp Act, 1957 read with Section 151 of CPC to impound the original agreement of sale dated 25.11.2004 marked as Ex.P-1 on the ground that, the same is insufficiently stamped. The respondent has filed statement of objections. The trial court has dismissed I.A No.3. The defendant has filed this writ petition questioning the said order. 3. Sri T.M. Venkata Reddy, learned advocate appearing for the petitioner contended that, the trial court has committed a manifest error in relying upon the decisions reported at ILR 2007 Kar 2786 and AIR 2007 SC 637 and in holding that Ex.P-1 cannot be impounded and in dismissing I.A.No.3. Learned counsel submits that the said decisions have no application and further, Sections 33 & 34 of the Act imposes a duty upon the court to impound a document, which has not been sufficiently stamped, so as to safeguard the interest of the revenue and in marking Ex.P-1, there is violation of statutory duty by the trial court. 4. Sri B.V. Shivakumar, learned counsel appearing for the respondent, on the other hand contended that, I.A.No.3 filed by the defendant was untenable in view of section 35 of the Act. Learned counsel further submits that, marking of the agreement as at Ex.P-1 was not objected and where an instrument has been admitted in evidence, such admission cannot be permitted to be questioned in the subsequent stage of the suit in view of the applicability of the provision under Section 35 of the Act. 5. Keeping in view the rival contentions and the record of the writ petition, which I have perused, the point for consideration is: Whether the impugned order dismissing I.A.No.3 is illegal? 6. To answer the point raised supra, it is necessary to notice the provision under Section 35 of the Act and the same reads as follows: “35. 5. Keeping in view the rival contentions and the record of the writ petition, which I have perused, the point for consideration is: Whether the impugned order dismissing I.A.No.3 is illegal? 6. To answer the point raised supra, it is necessary to notice the provision under Section 35 of the Act and the same reads as follows: “35. Admission of instrument where not to be questioned: Where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped”. 7. Indisputedly, the plaintiff filed his evidentiary affidavit and deposed further as PW-1. The said agreement has been marked as Ex.P-1 in the evidence of the plaintiff. The finding of the trial court that, when the document was marked, learned counsel for the defendant was present and did not raise any objection for marking of the sale agreement as Ex.P-1 has not been questioned. 8. Section 33 of the Act casts a duty upon the authorities concerned including the courts to impound a document where the instrument produced before it is insufficiently stamped. As per Section 34 of the Act, 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, unless such instrument is duly stamped. 9. Section 35 of the Act prohibits a court of law from re-opening a matter in regard to the sufficiency or otherwise of the stamp duty paid on the instrument, in the event the same has been admitted in evidence. Only one exception the same has been made in this behalf, namely the provisions contained in Section 58 providing for revision of certain decisions of courts regarding sufficiency of stamps. 10. In the case of Javer Chand Vs. Pukhraj Surana, reported in AIR 1961 SC 1655 , it has been held as follows: “Once a document has been marked as an exhibit in the case and the trial has proceeded all along the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction”. 11. If a party to the lis has any objection for the production by the other party of an insufficiently stamped document and that it should not be admitted in evidence, he must raise the objection before the document is admitted in evidence. Once the document is admitted, no objection can be raised, since the time of raising objection has passed and Section 35 operates. If an objection is raised, the court has a duty to examine the document for the purpose of finding out whether it is sufficiently stamped or not and if it is insufficiently stamped, to impound the same and refer the document to the Deputy Commissioner for necessary action or in the alternative, if the party is willing to pay/deposit the difference of stamp duty and the penalty, to determine the same and upon the payment, to proceed further with regard to the admissibility of the document and the follow up proceedings. 12. In the instance case, no objection had been made by the petitioner in regard to the admissibility of Ex.P-1 in evidence of PW-1 and the document produced having been marked without any objection, the petitioner/defendant at later stage cannot contend that the said document should be impounded and the plaintiff should be directed to pay the penalty payable on the document. The document having been marked, the stage of applicability of Sections 33 & 34 of the Act has crossed. The said provisions were not clearly applicable and I.A.No.3 having been considered, the trial court is justified in dismissing the same. In the result, the writ petition is devoid of merit and shall stand dismissed. However, the proceedings in the matter relating to Ex.P-1, in terms of Section 58 of the Act, remains intact. No costs.