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2016 DIGILAW 267 (RAJ)

Laxmi Lal v. Chatarbhuj

2016-02-17

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against order dated 04.10.2013 passed by the trial court, whereby, the applications filed by the petitioner under Order 14, Rule 2 CPC and Section 35 of the Stamp Act, 1899 ('the Act of 1899') (Section 39 of the Rajasthan Stamp Act, 1998 – 'the Act of 1998') has been disposed of. 2. The respondent filed a suit for specific performance of the contract and in the alternative for refund of a sum of Rs. 75,000/-. 3. The suit was resisted by the petitioner; one of the objections, raised by the petitioner, pertained to the document dated 13.05.2003 being unregistered and insufficiently stamped. 4. The trial court framed issue Nos. 4 and 5 with regard to the objections raised by the petitioner. 5. Where after, the petitioner filed two applications seeking decision of issue Nos. 4 and 5 as preliminary issues and impounding the document under Sections 35 and 37 of the Act of 1989 and Section 39 of the Act of 1998. 6. The applications were resisted by the plaintiff. 7. The trial court after hearing the parties, came to the conclusion that the issues would be decided after the evidence is led by the parties and qua the document, it was held that in view of proviso to Section 49 of the Registration Act, 1908 ('Registration Act'), the document was admissible in evidence. It is submitted by learned counsel for the petitioner that the issue Nos. 4 and 5 were preliminary in nature and, therefore, the trial court was bound to decide the said issues as preliminary issues; it was submitted that petitioner had filed application under the Stamp Act alleging insufficiency of the stamp duty paid on the document in question, however, the trial court has not even dealt with the said issue and merely on coming to the conclusion that the document did not require registration under proviso to Section 49 of the Registration Act has dismissed the applications. 8. Learned counsel for the respondent supported the order impugned; it was submitted that the nature of issues are such that the same would require leading of the evidence and the same aspect may be decided along with the other issues only. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 10. The issue Nos. 4 and 5 read as under:- **4- D;k oknxzLr bdjkjukek i;kZIr eqnzkad ij fu"ikfnr ugha gksus ls ,oa iathd`r ugha gksus ls lk{; esa vxzkgk gS vkSj ,sls bdjkj ds vk/kkj ij ;g okn fujLruh; gSA && ftEes izfroknh 5- D;k oknhxzLr bdjkjukek jguukek gS] tks /kkjk 59 lEifRr vUrj.k vf/kfu;e ds izko/kkuksa ds izfrdwy gksus ls izLrqr okn fujLruh; gSA && ftEes izfroknhA** 11. A bare look at the issues indicate that while issue No. 4 pertains to the admissibility of the document, which is the foundation of the suit and issue No. 5 pertains to the implication of provisions of Section 59 of the Transfer of Property Act, 1882 ('TP Act'); the very fact that the suit is based on the document dated 13.05.2003 and the issue has been raised regarding its admissibility, the trial court under provisions of Order 13, Rule 3 CPC as well as under Section 39 of the Act of 1998 is bound to decide the admissibility of the document based on its sufficiency of stamp duty as well as the registration at the preliminary stage either by way of deciding the issue as a preliminary issue or on an application filed by either of the parties and, therefore, the trial court was not justified in rejecting the application filed by the petitioner for deciding issue No. 4 as preliminary issue. 12. So far as issue No. 5 is concerned, the same would depend on the interpretation, which is put on the document in question and the same could only be decided once the evidence is led by the parties and, therefore, it cannot be said that issue No. 5 could be decided as a preliminary issue. 13. There is substance in the submissions made by learned counsel for the petitioner that the trial court without dealing with the issue raised by the petitioner regarding insufficiency of the stamp duty has rejected the application filed by the petitioner. 14. The trial court merely based on its finding regarding requirement of registration has rejected the application, which is apparently incorrect and the trial court should have decided the application qua the sufficiency of stamp duty as well. 15. In view of the above discussion, the writ petition is allowed. 14. The trial court merely based on its finding regarding requirement of registration has rejected the application, which is apparently incorrect and the trial court should have decided the application qua the sufficiency of stamp duty as well. 15. In view of the above discussion, the writ petition is allowed. The order dated 04.10.2013 passed by the trial court is set aside. The trial court is directed to decide issue No. 4 as preliminary issue and while deciding the said issue should decide the aspect pertaining to sufficiency of stamp duty as well.