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2017 DIGILAW 2825 (RAJ)

BABU LAL v. MOHAN LAL

2017-12-19

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. The present writ petition has been preferred against the order dated 01.11.2017 passed by learned Additional District Judge, Balotra (hereinafter referred to as 'Trial Court') whereby the petitioner has been refused to mark exhibit on documents dated 30.01.2014 and 25.02.2005 as the same were not registered and appropriately stamped. 2. The facts, in brief, giving rise to the present writ petition are that the petitioner/plaintiff had filed a suit for specific performance of an agreement dated 25.02.2005. The petitioner had relied upon a receipt dated 30.11.2004 and sought enforcement of the agreement to sell dated 25.02.2005. 3. During the proceedings of the case, when the petitioner proceeded to mark exhibit on receipt dated 30.11.2004, evincing a payment of Rs. 3 lakhs and the agreement to sell dated 25.02.2005, the defendant raised a written objection, which came to be decided by learned Trial Court vide the order impugned. 4. While deciding the objection raised by the defendant, leaned Trial Court refused to allow the petitioner to mark exhibit on both the documents inter alia observing that the agreement in question requires registration as well as payment of appropriate stamp duty. 5. Mr. Rameshwar Hedau, learned counsel appearing for the petitioner challenging the order dated 11.01.2017 submitted that though the agreement dated 25.02.2005 is not registered, but in view of proviso to Section 49 of the Registration Act, the same is admissible in evidence, for the purpose of enforcement of rights arising out of such agreement. He submitted that as far as payment of stamp duty is concerned, such defect is curable and the petitioner is ready to pay the deficit stamp duty, if payable. He added that upon payment of such stamp duty, the document is undisputably admissible in evidence. 6. Mr. S.M. Parihar, learned counsel appearing for the respondent while supporting the order dated 11.01.2017, submitted that as long as, stamp duty is not paid, the document in question is inadmissible in evidence. 7. Heard learned counsel for the parties and perused the material available on record, including the contentious documents, namely the receipt dated 30.11.2004 and agreement to sell dated 25.02.2005. 8. The fundamental fact that the suit in question is a suit for specific performance of the agreement dated 25.02.2005 is not in dispute. 9. 7. Heard learned counsel for the parties and perused the material available on record, including the contentious documents, namely the receipt dated 30.11.2004 and agreement to sell dated 25.02.2005. 8. The fundamental fact that the suit in question is a suit for specific performance of the agreement dated 25.02.2005 is not in dispute. 9. Learned Trial Court has held both the documents to be inadmissible in evidence as the same were unregistered and not properly stamped, without properly reading the provision of Section 49 of the Registration Act, 1908 and Section 39 of the Registration Stamp Act, 1998. 10. A bare look at Section 49 of the Registration Act, leaves no room for ambiguity that unregistered agreement to sell can be led in evidence, in a suit for specific performance of such of agreement. 11. At such, the agreement dated 25.02.2005 is admissible in evidence even sans registration. However, in relation to the payment of stamp duty, contention of Mr. Parihar is correct that until and unless the appropriate stamp duty is paid, the document cannot be admitted in evidence. 12. As petitioner has undertaken to pay the deficit stamp duty, the writ petition is allowed. The order dated 11.01.2017 is quashed and set-aside. The learned Trial Court is directed to impound the original agreement dated 25.02.2005 and remit the same to the Collector (Stamps), Barmer for determining the appropriate stamp duty. The Collector (Stamps), Barmer shall determine the appropriate stamp duty payable on the said agreement, within a period of two months of its receipt. 13. The proceedings before the learned Trial Court till determination of the stamp duty as aforesaid shall remain in abeyance. The agreement to sell dated 25.02.2005 shall be permitted to be marked, on payment of such stamp duty. 14. The writ petition is allowed, as above.