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2014 DIGILAW 184 (KAR)

Shivaputrappa v. Ningamma

2014-02-18

B.SREENIVASE GOWDA

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Judgment :- Sreenivase Gowda, J. 1. W.P. No. 70162/12 is filed by defendants 2 and 4 in O.S. 18/2009 on the file of the Senior Civil Judge, Hunagund, seeking a writ of certiorari to quash the order Annexure-H dated 28.8.12, whereby the Trial Court has allowed the application I.A. No. 16 filed under Section 151 of CPC by defendants 2 and 4 and directing them to pay ten times penalty on the stamp duty payable as required under Section 34 of the Karnataka Stamp Act, hereinafter referred to as the “the Act” for short, and directing them to deposit deficit stamp duty of Rs. 1,91,400/-. 2. W.P. No.85787/2013 is filed by the plaintiffs in the said suit, seeking a writ of certiorari to quash the Order Annexure-H dated 23.09.2013 whereby it has rejected the I.A. 26 filed by the plaintiffs and for a writ of mandamus directing the Trial Court to proceed with the suit without waiting for the result of W.P. 70162/12 filed by defendants 2 and 4. 3. As both the writ petitions are between the same parties challenging the different orders passed in the same suit O.S. 18/2009, they are heard together and disposed of by this common judgment. 4. For the sake of convenience, the parties are referred to as they are referred to in the suit before the Trial Court. 5. The facts leading to these writ petitions are stated as under: The plaintiffs have brought the suit O.S. 18/2009 seeking for partition and separate possession of their share in the suit properties. Defendant No. 2 i.e. 1st petitioner in W.P. 70162/2012 filed written statement denying the case of the plaintiffs and contending that the partition was already taken place in their family as per the Partition Deed dated 22.9.1993 and prayed for dismissal of the suit. Defendant No. 4 i.e., 2nd petitioner in W.P. 70162/2012 filed a Memo adopting the written statement filed by the 2nd defendant. Whereas defendants 1 and 3 filed written statements supporting the case of the plaintiffs. 6. Therefore, defendants 2 and 4 filed an application I.A. 13/under Section 33(1) praying the Trial Court to hold the Partition Deed dated 22.9.1993 produced by them as insufficiently stamped under Section 33(1) of the Act and to refer the same to the District Registrar of Bagalkot to collect the deficit stamp duty and penalty payable on the said document. 6. Therefore, defendants 2 and 4 filed an application I.A. 13/under Section 33(1) praying the Trial Court to hold the Partition Deed dated 22.9.1993 produced by them as insufficiently stamped under Section 33(1) of the Act and to refer the same to the District Registrar of Bagalkot to collect the deficit stamp duty and penalty payable on the said document. The said application was opposed by the plaintiffs by filing statement of objections. 7. The Trial Court by the impugned order Annexure-H to W.P. 70162/2012 allowed the application filed by defendants 2 to 4 and directed the Office to send the Partition Deed dated 22.9.1993 to the District Registrar and further directed the Office to hand-over the said document to defendants 2 and 4. Pursuant to the said Order, the District Registrar determined the stamp duty as to what would be the stamp duty payable if it is calculated with penalty of Rs. 5/- and what would be the stamp duty payable if it is calculated with maximum penalty of 10 times, and forwarded his decision to the Trial Court as per Annexure-F. 8. Thereafter defendants 2 and 4 filed an application I.A. 16 under Section 151 CPC praying the Trial Court to permit them to pay the stamp duty and penalty in the light of the decision of the District Registrar for Stamps by using its discretionary power. The Trial Court by the impugned order Annexure-H allowed the application I.A. 16 by imposing penalty of ten times of the duty as required under Section 34(a) of the Act and directed the defendants 2 and 4 to pay Rs.1,91,400/- towards deficit stamp duty. 9. Defendants 2 and 4 aggrieved by the impugned order Annexure-H have challenged the same in W.P. 70162/12 seeking to quash the order Annexure-H. 10. Learned Counsel for defendants 2 and 4 contends although the Trial Court has discretionary power under Section 34 of the Act to impose lesser penalty, has committed an error in directing defendants 2 and 4 to pay the deficit stamp duty with maximum penalty of ten times. He submits that the impugned Order Annexure-H is contrary to the judgment of the Learned Single Judge of this Court in the case of K. GOVINDEGOWDA vs. AKKAYAMMA AND OTHERS 2011(4) KCCR 2799 . With this he prays for allowing the writ petition by quashing the impugned order Annexure-H. 11. He submits that the impugned Order Annexure-H is contrary to the judgment of the Learned Single Judge of this Court in the case of K. GOVINDEGOWDA vs. AKKAYAMMA AND OTHERS 2011(4) KCCR 2799 . With this he prays for allowing the writ petition by quashing the impugned order Annexure-H. 11. Learned Counsel for the plaintiffs submits the impugned Order Annexure-H passed by the Trial Court is in accordance with two judgments of two coordinate Division Benches of this Court rendered in the case of MISS. SANDRA LESLEY ANNA BARTELS vs. MISS P. GUNAVATHY AIR 2013 KARN. 52, and in the case of DIGAMBAR WARTY AND OTHERS vs. DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT, BANGALORE AND ANOTHER 2013(4) Kar. L.J. 247 (DB). As such there is no illegality or infirmity in the impugned order passed by the Trial Court warranting interference of this Court and he prays for dismissal of W.P.No.70162/12 filed by defendants 2 and 4. 12. Learned Counsel for the plaintiffs, submits although this Court in W.P. 70162/12 has granted interim order staying only the operation of the order Annexure-H dated 28.8.12 passed on I.A. 16, the Trial Court declined to proceed with the suit and therefore, plaintiffs made an application I.A. 26 under 151 CPC praying the Trial Court to proceed with the suit pointing out that this Court has not granted stay for the further proceedings of the suit. Inspite of that the Trial Court has committed an error in rejecting his application I.A. 26 by order dated 23.9.2013 and aggrieved by the same plaintiffs have preferred W.P. 85787/13 seeking a writ of certiorari to quash the order dated 23.9.2013 vide Annexure-H to their writ petition and seeking a writ of mandamus directing the Trial Court to proceed with the suit. 13. It is to be noted the judgment of the Learned Single Judge of this Court rendered in the case of K. GOVINDE GOWDA is held to be not a good law by a Division Bench judgment of this Court in the case of DIGAMBAR WARTY AND OTHERS. 14. 13. It is to be noted the judgment of the Learned Single Judge of this Court rendered in the case of K. GOVINDE GOWDA is held to be not a good law by a Division Bench judgment of this Court in the case of DIGAMBAR WARTY AND OTHERS. 14. The issue involved in this case is squarely covered by the judgments of this Court rendered in the following cases: (1) LAKSHMINARAYANACHAR vs. NARAYAN AND ANOTHER 1969 (2) Mys.LJ 299 (2) SHANTAKUMAR V.V. vs. SHRI MANIK SATWAJIRAO JATHAR W.P.5870/2008 disposed of on 4.11.2008 (3) DIGAMBAR WARTY AND OTHERS vs. DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT, BANGALORE AND ANOTHER (Supra) (4) MISS. SANDRA LESLEY ANNA BARTELS vs. MISS P. GUNAVATHY (Supra). According to the above decisions, whenever it comes to the notice of Civil Court that a document produced by any party to the suit is not stamped as required under the Act, it has no option but to immediately order for impounding of such document as required under Section 33(1) of the Act. Thereafter as and when a party wants to introduce or tender such document in evidence, the Civil Court has no option but to direct its office to calculate the stamp duty or deficit thereof payable with penalty of ten times and fix the date for payment of the said amount and thereafter it has to forward an authenticated copy of the said document to the jurisdictional District Registrar for Stamps as required under Section 37(1) of the Act. If a party who is liable to pay duty with ten times penalty as calculated by the Office of the Court fails to pay the amount within the time stipulated and make use of the document in evidence, in such case the Court shall have to forward the original document itself to the jurisdictional District Registrar for further course of action as contemplated under Section 37(2) of the Act. 15. In the instant case, defendants 2 to 4 themselves made an application I.A. 13 under Section 33(1) of the Act praying the Trial Court to hold the Partition Deed dated 22.9.1993 produced by them as not duly stamped and refer the same to the District Registrar, Bagalkot, to collect the deficit stamp duty and penalty payable. 15. In the instant case, defendants 2 to 4 themselves made an application I.A. 13 under Section 33(1) of the Act praying the Trial Court to hold the Partition Deed dated 22.9.1993 produced by them as not duly stamped and refer the same to the District Registrar, Bagalkot, to collect the deficit stamp duty and penalty payable. The Trial Court after having impounded the said document under Section 33(1) of the Act instead of directing its Office to calculate the deficit stamp duty with reference to the relevant provisions of the Act with ten times penalty directed the Office to forward the document to the District Registrar, Bagalkot, who calculated it as to what would be the deficit stamp duty if it is payable with fine of Rs. 5/- and what would be the deficit stamp duty if it is payable with penalty of ten times and forwarded its decision to the Trial Court. 16. Thereafter, defendants-2 and 4 made an application I.A. 16 under Section 151 CPC praying the Trial Court to permit them to pay the duty and penalty in the light of the decision of the District Registrar by using its discretionary power. The Trial Court allowed the application and directed the defendants 2 and 4 to pay the deficit stamp duty with penalty of ten times amounting to Rs. 1,91,400/-. According to the defendants-2 and 4 and the Trial Court could have imposed lesser penalty by using his discretionary power vested with it under proviso to Section 34 of the Act in the light of the decision of this Court rendered in the case of K. GOVINDE GOWDA. 17. 1,91,400/-. According to the defendants-2 and 4 and the Trial Court could have imposed lesser penalty by using his discretionary power vested with it under proviso to Section 34 of the Act in the light of the decision of this Court rendered in the case of K. GOVINDE GOWDA. 17. As already stated above, the judgment rendered in the case of K. GOVINDE GOWDA being declared as not a good law and in view of judgments rendered by two Division Benches of this Court in the cases (1) MISS SANDRA LESLEY ANNA BARTLES vs. MISS P. GUNAVATHY (Supra) and (2) DIGAMBAR WARTY AND OTHERS vs. DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT, BANGALORE AND ANOTHER (Supra) if defendants 2 and 4 want to introduce an unregistered Partition Deed dated 22.9.1993 in evidence then they have no option but to pay the stamp duty as directed by the Trial Court and in the event of their failing to do so the Trial Court which as already impounded the said document has no option but to forward the original partition deed itself to the District Registrar for further course of action as required under Section 37(2) of the Act. 18. In view of disposing of W.P. No.70162/12 filed by defendants 2 and 4, W.P. No.85787/2013 filed by plaintiffs seeking to quash I.A. 26 filed by them under Section 151 CPC and seeking mandamus directing the Trial Court to proceed with the suit does not survive. 19. Accordingly, both the writ petitions stand disposed of with the following observations: If defendants 2 and 4 want to tender or introduce the Partition Deed dated 22.9.1993 they shall pay deficit stamp duty of Rs. 1,91,400/- as directed by the Trial Court on or before 30.06.2014. Thereafter the Trial Court shall forward an authenticated copy of the said document to the District Registrar, Bagalkot, as required under Section 37(1) of the Act. If they fail to pay the deficit stamp duty of Rs. 1,91,400/- by the end of June, 2014, and decline to rely upon the Partition Deed dated 22.9.1993, in such case, the Trial Court shall forward the said original document to the District Registrar, Bagalkot, under Section 37(2) of the Act. Defendants 2 and 4 after payment of deficit stamp duty with penalty as directed by the Trial Court is at liberty to move the District Registrar, Bagalkot, for further course of action in the matter. Defendants 2 and 4 after payment of deficit stamp duty with penalty as directed by the Trial Court is at liberty to move the District Registrar, Bagalkot, for further course of action in the matter. 20. Considering the suit is of the year 2009, the Trial Court is directed to dispose of the suit as expeditiously as possible in the facts and circumstances of the case.