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2012 DIGILAW 1724 (RAJ)

Shyoraj v. ADJ, Malpura, Distt. Tonk

2012-08-07

BELA M.TRIVEDI

body2012
Hon'ble TRIVEDI, J.—The present petition has been filed by the petitioner-plaintiff challenging the order dated 17.4.2012 passed by the Addl. District Judge, Malpura, District Tonk (hereinafter referred to as 'the trial court') in Civil Suit No. 6/07, whereby the trial court has directed the petitioner-plaintiff to deposit the amount of Rs. 20,000/- by way of stamp duty and Rs. 2,00,000/- by way of penalty under the provisions contained in The Rajasthan Stamp Act, 1998 (hereinafter referred to as 'the said Act'). 2. The short facts, giving rise to the present petition, are that the petitioner-plaintiff has filed the suit against the respondent Nos. 2 to 7 (defendants) seeking specific performance of the agreement dated 22.2.06 in respect of the suit property and also for permanent injunction. The said suit has been resisted by the respondents-defendants by filing the written statement. It appears that the trial court framed as many as five issues from the pleadings of the parties. From amongst the said issues, the issue No.3 was as to what would be the effect of the unregistered and not properly stamped agreement on the suit? From the copy of the order-sheet filed by the petitioner, it appears that the court had fixed the matter for hearing on the issue No.3 on 3.3.12, and on the said date after hearing the learned counsels for the parties, the trial court passed the order observing that the said agreement in question though unregistered, would be admissible in evidence. Thus the trial court decided the issue No.3 in favour of the plaintiff and against the defendants. 3. Being aggrieved by the said order dated 3.3.12, one of the respondents/defendants had preferred the revision petition being S.B. Civil Revision Petition No. 25/12 before this court. This court vide the order dated 2.4.12, partly allowed the said revision petition. This court confirmed the said order dated 3.3.12 to the extent of point of registration of agreement to sell and remanded the matter back to the trial court with a direction to consider and decide the point regarding insufficiency of stamp duty in accordance with law after giving proper opportunity to both the parties. The trial court after the remand of the matter, passed the impugned order dated 17.4.12 directing the petitioner-plaintiff to pay the stamp duty of Rs. 20,000/- and penalty of Rs. 2,00,000/- under the provisions contained in Section 39 of the said Act. The trial court after the remand of the matter, passed the impugned order dated 17.4.12 directing the petitioner-plaintiff to pay the stamp duty of Rs. 20,000/- and penalty of Rs. 2,00,000/- under the provisions contained in Section 39 of the said Act. Being aggrieved by the said order, the present petition has been filed by the petitioner-plaintiff under Article 227 of the Constitution of India. 4. The learned counsel Mr. Prahlad Sharma for the petitioner submitted that the High Court had partly allowed the Revision Petition without issuing notice to the petitioner and without giving the opportunity of hearing to the petitioner. According to him, the trial court, therefore, passed the impugned order pursuant to the said order passed by the High Court, which was illegal and improper. Mr. Sharma further placing reliance on the decision of the Apex Court in case of Chilakuri Gangulappa vs. Revenue Divisional Officer, Madanpalle & Anr. (2001) 4 SCC, 197 submitted that the trial court could not have calculated and directed the petitioner to pay the amount of the stamp duty and the penalty and that the impugned order passed by the trial court was in violation of the provisions contained in the said Act. 5. However, the learned counsel Mr. S. Gaharana for the respondents relying upon the judgments of this court in case of Smt. Keshar vs. State of Rajasthan & Anr. 1997(1) WLC (Raj.), 514 and in the case of Sukhdev Singh vs. Baxis Singh & Anr. 2006(2) RLW, 1036 and on th judgment of Gujarat High Court in the case of John Mithalal Desai vs. Dineshbhai Vora 1998(2) Civil Court Cases, 339 (Gujarat) submitted that an unregistered agreement for sell would not be admissible in evidence, and that insufficiently stamped document could be impounded by the court and the party could be directed to pay the stamp duty and the penalty amount under the said Act. 6. Having regard to the submissions made by the learned counsels for the parties and from the impugned order as well as the documents on record, it appears that the trial court and the learned counsels for the parties have proceeded with the suit on the absolute misconception of law that the issue nO.3 could have been decided as the preliminary issue. As per order XIV Rule 2(2) of CPC, only such issue which relates to the issue of jurisdiction of the court or to the bar to the suit created by any law for the time being in force, could be decided as preliminary issue, and no other issue as such could have been decided by the trial court as the preliminary issue. The issue No.3 being neither the issue pertaining to the jurisdiction nor a bar under any law for the time being in force, the trial court had committed a manifest error of law in passing the order dated 3.3.12 and in deciding the issue No.3 as preliminary issue by holding that the unregistered agreement in question was admissible in evidence. The said order having been challenged before the High Court by the respondents and in view of the exparte order dated 2.4.12 passed by the High Court, the consequential order dated 17.4.12 has been passed by the trial court, which is also not in consonance with the provisions contained in the said Act. Since the very basis of the order dated 3.3.12 was not legal and proper, the consequential order dated 17.4.12 also could not be sustained. It is true that none of the parties had raised any objections against the trial court deciding the issue No.3 as preliminary issue, however, since the trial court and the learned counsel for the parties had proceeded with the suit under the absolute misconception of the law, such an illegal course of proceedings deserves to be corrected by this court exercising supervisory jurisdiction under Article 227 of the Constitution of India. 7. As per the settled legal position, Article 227 of the Constitution of India gives the High Court the power of superintendence over the courts subordinate to it, and the said jurisdiction extends to keeping the subordinate courts and tribunals within the limits of their authority and in seeing that they obey the law. In the instant case, since this court has found that the trial court has not proceeded with the suit in accordance with law, the orders dated 3.3.12 as well as the order dated 17.4.12 passed by the trial court deserve to be set aside. In the instant case, since this court has found that the trial court has not proceeded with the suit in accordance with law, the orders dated 3.3.12 as well as the order dated 17.4.12 passed by the trial court deserve to be set aside. However, it is observed that the issue of admissibility of the agreement in question is kept open which shall be decided by the trial court at the appropriate stage of trial in accordance with law. 8. In view of the above, the orders dated 3.3.12 and 17.4.12 are set aside. The petition stands allowed accordingly.