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2017 DIGILAW 1372 (RAJ)

Prem Chand v. Om Prakash

2017-05-29

DEEPAK MAHESHWARI

body2017
JUDGMENT : Deepak Maheshwari, J. On the prayer made jointly by both learned counsels, this first appeal is being heard and decided finally. 2. The plaintiff-appellant has preferred this appeal against the judgment and decree dated 02.03.2016 whereby the learned trial court has dismissed the suit filed by the plaintiff for specific performance of the agreement to sell dated 14.08.2000 and also for seeking permanent injunction order in his favour. 3. On perusal of the judgment impugned and record, it is found that the suit has been rejected mainly on the ground that the said agreement to sell dated 14.08.2000 was not sufficiently stamped and thus, was not found admissible in evidence. All the issues framed by learned trial court have been decided against the plaintiff on this sole ground that the said agreement was not admissible in evidence and hence, oral evidence adduced in regard to the issues framed does not require any detailed consideration. 4. Learned counsel for the appellant has submitted his argument while placing reliance on the judgment rendered by Hon'ble Supreme Court in Chilakuri Gangulappa v. Revenue Divisional Officer, Madanpalle and Anr. Reported in (2001) 4 SCC 197 , he submitted that in light of the judgment referred above, the matter may kindly be remanded back to the trial court as the appellant-plaintiff is ready and willing to make good deficiency of the stamp duty as also to pay penalty leviable as per the provisions of Rajasthan Stamp Act, 1998. Learned counsel for the respondent has fairly conceded to the submission made by the opposite side. 5. On perusal of the judgment impugned, it is found that the learned trial court has preferred to decide the issue No.5 at the first instance which was to the following effect:- "Whether the suit is liable to be dismissed as the agreement is unregistered and insufficiently stamped" 6. In view of the judgment S. Kaladevi v. V.R. Somasundaram and Ors. reported in 2010 (2) RLW SC 1796, the learned trial court came to the conclusion that the agreement was not required to be registered but found that it was not sufficiently stamped and hence, was not admissible in evidence. 7. In view of the judgment S. Kaladevi v. V.R. Somasundaram and Ors. reported in 2010 (2) RLW SC 1796, the learned trial court came to the conclusion that the agreement was not required to be registered but found that it was not sufficiently stamped and hence, was not admissible in evidence. 7. Hon'ble Supreme Court has laid down in Chilakuri Gangulappa (supra) that in case, the document produced before the civil court is not found sufficiently stamped then the procedure prescribed in the applicable stamp laws should be adopted for getting the said document impounded in making the deficiency of stamp duty good. 8. In light of the judgment referred above, the provisions contained in section 37, 39, 42 and 44 of the Rajasthan Stamp Act, 1998 were required to be followed by learned trial court and after making deficiency of the stamp duty good, it should have proceeded to decide the case on merit. In the present case, the trial court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with a penalty amounting to ten times the deficiency. If the appellant agrees to remit the said amount, the court has to proceed with the trial after admitting the document in evidence. In the meanwhile, the court has to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 44 (i) (ii) of the Act. Only if the appellant is unwilling to remit the amount, the court is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. 9. In light of whatever stated above, the judgment and decree impugned dated 02.03.2016 passed by learned Additional District Judge, Raisingnagar District Sriganganagar is quashed and set aside and the matter is remanded back to learned trial court to follow the procedure as contained in the provisions of section 37 (1) and (2), clause (a) of the proviso to section 39, section 42 (1) and (2) and section 44 of the Rajasthan Stamp act, 1998 and thereafter, to decide the case on merits. 10. The record of the trial court concerned be sent back immediately. 10. The record of the trial court concerned be sent back immediately. The parties are directed to remain present there on 10.07.2017.