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2019 DIGILAW 2942 (RAJ)

Bhanwar Lal v. Gopal Lal

2019-12-09

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - Instant writ petition is directed against order dated 15.12.2018, passed by the learned Senior Civil Judge, Chhoti Sadri, Pratapgarh (hereinafter referred to as 'the Trial Court'), vide which it has held the agreement dated 20.05.1997 to be inadmissible in evidence. 2. Succinctly stated, the facts appertain are, that the petitioner-plaintiff filed a suit for specific performance of an agreement dated 20.05.1997. During the proceedings, an objection was raised by the defendant in relation to admissibility of said document as the same was neither appropriately stamped nor was it registered. 3. The Trial Court, vide its order dated 15.12.2018, sustained the objection so raised by the defendant and held the subject document to be inadmissible in evidence, while relying upon the judgment of Hon'ble the Supreme Court, rendered in the case of Avinash Kumar Chouhan Vs. Vijay Krishna Mishra, (2009) AIR SC 1489 . 4. Mr. Jain, learned counsel for the petitioner, assailing the order impugned, contended that the Trial Court has erred in holding the documents to be inadmissible in evidence and ignoring the fact that a document, if not duly stamped, is admissible in evidence after payment of appropriate stamp duty. He further argued that as per the proviso to Section 49 of the Registration Act, an unregistered document can be used in evidence for the suit of specific performance of the agreement. 5. With these arguments, learned counsel contended that it was required of the Trial Court to impound the document and send it for determination of appropriate stamp duty instead of outrightly holding it to be inadmissible in evidence. 6. Mr. Gupta, on the other hand, submitted that no such request for impounding the document was made by the petitionerplaintiff before the Trial Court and hence such request cannot be entertained by the Court, at this stage. He further submitted that upon payment of appropriate stamp duty a document can be admitted in evidence. 7. I have heard learned counsel for the parties and perused the impugned judgment and relevant material available on record. 8. He further submitted that upon payment of appropriate stamp duty a document can be admitted in evidence. 7. I have heard learned counsel for the parties and perused the impugned judgment and relevant material available on record. 8. So far as the judgment of Avinash Kumar (supra) relied upon by the Court below is concerned, the same is not applicable in the facts of the present case inasmuch as in the case before Hon'ble the Supreme Court, it was a suit for recovery of money, wherein Hon'ble the Supreme Court has held unregistered and unstamped document to be inadmissible. 9. As against this, the facts in the present case are starkly different. The suit in question is a suit for specific performance of the agreement to sell dated 20.05.1997. Hence, in light of proviso to Section 49 of the Registration Act, an unregistered document can be admitted in evidence, in a suit for specific performance of such agreement. 10. So far as payment of appropriate stamp duty is concerned, as per the provisions of Section 35 of the Stamp Act, 1998, the document can be admitted in evidence on payment of applicable stamp duty. 11. True it is, that no application was filed nor any request was made by the petitioner before the Trial Court for making up the deficit of stamp duty. But the same is of hardly any consequence particularly in view of the submissions made by Mr. Jain showing his willingness to pay the appropriate stamp duty. 12. As an upshot of the discussion aforesaid, the writ petition is allowed. The impugned order dated 15.12.2018 is quashed and set aside. The Trial Court is directed to impound the contentious agreement to sell dated 20.05.1997 and send it for determination of appropriate stamp duty, within a period of 15 days of receipt of the certified copy of the order instant. 13. The concerned Collector, Stamps shall determine the stamp duty payable on such document within a period of one month from receipt of the document. 14. The petitioner shall be free to take just objections with respect to valuation of the document and payment of stamp duty. 15. On payment of deficit stamp duty, the document shall obviously be treated admissible in evidence and the Trial Court shall proceed in accordance with law. 16. 14. The petitioner shall be free to take just objections with respect to valuation of the document and payment of stamp duty. 15. On payment of deficit stamp duty, the document shall obviously be treated admissible in evidence and the Trial Court shall proceed in accordance with law. 16. Till the document is received back by the Trial Court after payment of appropriate stamp duty, further proceedings in the Trial Court shall remain stayed.