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2013 DIGILAW 5 (UTT)

Mahant Krishna Giri, Chela Mahant Vikram Giri v. Deepa Devi w/o Govind Singh

2013-01-02

B.S.VERMA

body2013
ORDER Heard learned counsel for the petitioner. 2. A perusal of the order dated 9-11-2012 shows that notice was issued to the respondent and apart from normal mode of service, liberty was given to the petitioner to serve Dasti upon the respondent. 3. Notice was served Dasti upon the respondent and the learned counsel for the petitioner has filed affidavit of service in the Registry of this Court. A perusal of office report reveals that notice was also sent by registered post on 21-11-2012 to the respondent but neither undelivered envelope was returned nor any one has put in appearance on behalf of the respondent by filing Vakalatnama. 4. Since a period of thirty days has already elapsed from the date of issue of notice by registered post, therefore, service is deemed sufficient on the respondent. 5. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 2-11-2012 passed by the District Judge, Dehradun in Civil Revision No. 81 of 2012, Mahant Krishna Giri v. Deepa Devi as well as the order dated 22-10-2012 passed by the Civil Judge (Senior Division) Rishikesh in Original Suit No. 118 of 2006. By the order dated 22-10-2012, the application paper No. 92-C2 moved by the plaintiff-petitioner under Order 13, Rule 3, C.P.C. was dismissed by the trial Court. By the order dated 2-11-2012, the revision filed by the plaintiff-petitioner has also been dismissed. 6. A perusal of the record shows that before the trial Court the plaintiff filed paper No. 92-C under Order 13, Rule 3, C.P.C. with a prayer that the alleged agreement for sale filed by the defendant in suit is neither properly stamped nor it is a registered document therefore, the document cannot be admitted in evidence. 7. The application was opposed by the defendant on the ground that the alleged document cannot be read in evidence for collateral purposes and the same cannot be ignored outright. 8. The learned trial Court did not find favour with the plaintiff-petitioner and dismissed the application 92-C by order dated 22-10-2012, which was assailed by the plaintiff before the District Judge in revision. The learned revisional Court also did not find favour with the plaintiff and dismissed the revision that by the impugned order, case was not finally decided. 9. 8. The learned trial Court did not find favour with the plaintiff-petitioner and dismissed the application 92-C by order dated 22-10-2012, which was assailed by the plaintiff before the District Judge in revision. The learned revisional Court also did not find favour with the plaintiff and dismissed the revision that by the impugned order, case was not finally decided. 9. I have heard learned counsel for the petitioner and perused the entire material placed before this Court. 10. Learned counsel for the petitioner has contended that the alleged document (paper No. 30-A), which was filed by the defendant before the trial Court is neither duly stamped nor the same is a registered document, therefore, such a document would not be admissible for collateral purpose. In support of his argument, learned counsel has placed reliance upon the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra [AIR 2009 Supreme Court 1489]. 11. I have perused the case law. In the case before the Apex Court, an unregistered deed of sale was filed. The Apex Court while considering the provisions of Section 35 of the Stamp Act has observed that the unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The Court, therefore, was empowered to pass an order in terms of Section 35 of the Stamp Act. The plea that the document was admissible for collateral purpose would not be tenable. Thus, order directing impounding of said document was not liable to be interfered with. 12. The Apex Court in the said case further referred the case of T.Bhaskar Rao v. T.Gabriel and others [ AIR 1981 AP 175 ] wherein in paragraph No. 7 it has been held thus:- 7. It is now well settled that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act. 13. Since in the case at hand, the alleged document (paper No. 30-A) is undisputedly not properly stamped. 13. Since in the case at hand, the alleged document (paper No. 30-A) is undisputedly not properly stamped. Moreover, since the learned trial Court in the impugned order dated 22-10-2012 has held that the document can be read in evidence for collateral purpose even without properly stamped, this Court is of the view that the approach of the learned trial Court is not proper and this finding is clearly perverse. The impugned orders passed by the Civil Judge (Senior Division) Rishikesh (Dehradun) as well as the order dated 2-11-2012 passed by the revisional Court are liable to be set aside in view of the Apex Court verdict in the case of Avinash Kumar Chauhan (supra) and it is held that if the document is under-stamped that cannot be read in evidence for collateral purpose. 14. For the reasons and discussion above, the writ petition deserves to be allowed. 15. The writ petition is allowed. The orders impugned in this writ petition are set aside. Petition allowed.