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2012 DIGILAW 4428 (MAD)

Rabiya Basheer Ali v. C. Devendra Prasad

2012-10-19

R.S.RAMANATHAN

body2012
Judgment 1. Tenant is the revision petitioner. 2. The landlord/respondent filed application for eviction and the tenant/revision petitioner marked Ex.R1 and thereafter, the landlord filed application to reject Ex.R1 stating that Ex.R1 consists of two documents and the first document is properly valued and stamped and the second document is a supplementary lease agreement and that document is not duly stamped and unregistered one and therefore, that document cannot be marked in evidence and therefore, the said document has to be rejected. That petition was allowed and the revision petitioner was directed to pay stamp duty penalty for the second document viz., not duly stamped and unregistered document and that was challenged in appeal and the appellate authority modified the order and directed to send the supplementary lease deed to the office for fixation of stamp duty and after fixation of the stamp duty by the office if the tenant failed to pay stamp duty thereafter, the Trial Court has to impound the supplementary lease deed and forward the same to the Collector and that order is challenged in this revision. 3. Mr. P.B. Ramanujam, learned counsel for the revision petitioner submitted that the courts below, without properly appreciating the provisions of the Indian Stamp Act, erred in directing the petitioner to pay stamp duty and under section 36 of the Indian Stamp Act, once a document is marked in evidence, no person can question the document stating that the document is not duly stamped and therefore, the document in question is already marked as Ex.R1 and having kept quiet when the document was marked, it is not open to the respondent to raise any objection at a later stage and that is prohibited under section 36 of the Indian Stamp Act and relied upon the judgment in SHYAMAL KUMAR ROY v. SUSHIL KUMAR AGARWAL ((2007) 1 MLJ 617), JAVER CHAND v. PUKHRAJ SURANA ( AIR 1961 SC 1655 ) and CHILAKURI GANGULAPPA v. REVENUE DIVISIONAL OFFICER, MADANAPALLE ((2001) 2 MLJ 33 (SC)) in support of his contention. 4. 4. Learned counsel for the respondent submitted that under section 33 of the Indian Stamp Act, a statutory obligation is cast upon all the authorities to impound a document while receiving a document when the document is not duly stamped and under the provisions of the Indian Stamp Act, a document cannot be considered for collateral purpose when it is not duly stamped and that can be considered only when the document is not registered under section 49 of the Registration Act and as the document is not properly stamped, the document is liable to be rejected. He further submitted that Ex.R1 consists of two documents and the first document has been admitted in evidence as it is duly stamped and the second document has not been admitted and hence, the first document alone can be marked as Ex.R1 and therefore, the courts below have rightly held that the revision petitioner has to pay the stamp duty. He also relied upon the judgment reported in A.K.CHAUHAN v. V.K.MISHRA ((2009) 3 MLJ 409 (SC)). 5. Before going into the legal issues in this case, it is admitted that Ex.R1 consists of two documents and those two documents are not marked as Ex.R1 series. Though it is contended by the learned counsel for the revision petitioner that unlike the suits, in rent control proceedings the documents more than one in number will not be marked as series and Ex.R1 is referable only to the documents filed by the revision petitioner viz., two documents and it cannot be stated that Ex.R1 refers to one document, but there is no material to substantiate the same. Therefore, in the absence of any material to show that Ex.R1 refers to two documents, we will have to presume that Ex.R1 refers to the first document which is admissible in evidence and the second document cannot be said to be admitted in evidence. Further, there is no dispute regarding the provision of law that the unstamped instrument cannot be received in evidence for any purpose. 6. Further, the Indian Stamp Act provides the procedure in the case of stamped instrument produced in evidence. In the judgment reported in (2001) 2 MLJ 33 (SC), the Honourable Supreme Court, after referring to the provision of sections 33 and 38 of the Indian Stamp Act, held as follows:- "38. 6. Further, the Indian Stamp Act provides the procedure in the case of stamped instrument produced in evidence. In the judgment reported in (2001) 2 MLJ 33 (SC), the Honourable Supreme Court, after referring to the provision of sections 33 and 38 of the Indian Stamp Act, held as follows:- "38. Instruments impounded how dealt with.- (1) Where the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits, such instrument in evidence upon payment of a penalty as provided by Sec.35 or of duty as provided by Sec.37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf. (2) When such instrument has been impounded only because it has been written in contravention of Sec.13 or Sec.14, the Collector may refund the whole penalty so paid." 12. It is clear from the first sub-Section extracted above that the court has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the court chooses to admit the document on compliance of such condition the Court needs to forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory stamps. But if the party refuses to pay the amount aforesaid the Court has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is not duly stamped "he shall require the payment of the property duty or the amount required to make up the same together with a penalty of an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof." 7. In the judgment reported in AIR 1961 SC 1655 , it is made clear that once a document is admitted in evidence, the same cannot be questioned at any stage after marking of the same. The same principle is reiterated in the judgment in (2007) 1 MLJ 617(SC). But, having regard to the peculiar facts and circumstances of this case, I am of the opinion that the courts below have rightly held that the supplementary lease deed was not marked as Ex.R1 and therefore, it can be received in evidence by following the procedure contemplated under the Indian Stamp Act. 8. The rent control appellate authority has followed the procedure contemplated under section 38 of the Indian Stamp Act and directed the office to fix the stamp duty and if the revision petitioner failed to pay stamp duty fixed by the office, the same has to be impounded for sending the same to the District Collector and the procedure adopted by the appellate authority is in conformity of the provisions of sections 35 to 38 of the Indian Stamp Act and I do not find any infirmity in the order of the court below. 9. In the result, the civil revision petition is dismissed. No costs.