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2020 DIGILAW 516 (RAJ)

Ramdhan v. Nanagram

2020-03-24

PRAKASH GUPTA

body2020
ORDER 1. This writ petition has been filed by the petitioners-applicants-defendants (hereinafter referred to as 'the defendants) against the order dated 5th March, 2014 passed by the trial Court in Civil Suit No. 2/2004 whereby the application filed by the defendants under Section 33 and 35 of the Indian Stamp Act, 1899 read with Section 37 and 39 of the Rajasthan Stamp Act, 1998 has been dismissed. 2. Facts giving rise to the present writ petition are that the respondent-plaintiff (hereinafter 'the plaintiff) filed a suit for specific performance of the agreement. The plaintiff submitted two agreements to sell dated 15.6.2001 and 14.7.2003. An objection was raised by the defendants that both the agreements to sell being deficiently stamped and unregistered were inadmissible in evidence. The trial court kept the objection raised by the defendants pending with the observation that the admissibility of the agreements would be decided at the time of final adjudication of the suit. In such circumstances the defendants filed an application under Section 33 and 35 of Indian Stamp Act, 1899 and Section 37 and 39 of the Rajasthan Stamp Act, 1998 contending that the agreements to sell being deficiently stamped and unregistered were inadmissible in evidence. The aforesaid agreements to sell were liable to be impounded in terms of the provisions of Section 33 and 35 of the Indian Stamp Act, 1899 and Section 37 and 39 of the Rajasthan Stamp Act, 1998 and could be admitted in evidence only after the payment of requisite stamp duty and penalty thereon. The plaintiff filed reply to the said application. The Trial Court vide its order dated 5th March, 2014 dismissed the defendants' application under Section 33 and 35 of the Indian Stamp Act, 1899 read with Section 37 and 39 of the Rajasthan Stamp Act, 1998. Hence this writ petition. 3. Learned counsel for the defendants submitted that the impugned order dated 5th March, 2014 has been passed by the Trial Court in ignorance of the provisions of Section 33 and 35 of the Indian Stamp Act 1899 and Section 37 and 39 of the Rajasthan Stamp Act, 1988. Hence this writ petition. 3. Learned counsel for the defendants submitted that the impugned order dated 5th March, 2014 has been passed by the Trial Court in ignorance of the provisions of Section 33 and 35 of the Indian Stamp Act 1899 and Section 37 and 39 of the Rajasthan Stamp Act, 1988. He has further submitted that order dated 5th March, 2014 passed by the Trial Court suffers from apparent illegalities when it observed in the order impugned that its earlier order dated 29.10.2009 could not be reviewed, whereas on 29.10.2009, merely the objection raised by the defendants with regard to admissibility of the agreements to sell in issue was kept pending to be adjudicated at the final adjudication of the suit and no review thereof was sought. Learned counsel submits that at the appropriate stage of the suit i.e. at the time of hearing the arguments, the application was moved. In this view of the matter the same ought to have been considered and deserved to be allowed. However, the learned Trial Court has utterly failed to consider this aspect of the matter, therefore, the same deserves to be quashed and set-aside. 4. In support of his contentions, learned counsel for the defendants places reliance on the judgment passed by the Hon'ble Apex Court in the case of Avinash Kumar Chauhan Versus Vijay Krishna Mishra reported in (2009) 2 Supreme Court Cases 532. 5. Learned counsel for the plaintiff defended the impugned order and stated the same to be just and proper. He has further submitted that as per the order passed by the trial Court, admissibility of the agreements to sell would be decided at the time of final adjudication of the suit and that stage has not yet come, therefore, no interference is required by this Court in the order dated 5.3.2014 passed by the Trial Court. 6. Heard. Considered. 7. Hon'ble Supreme Court in the case of Javer Chand And Others vs Pukhraj Surana reported in 1961 AIR 1655 has held that:- "when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceeding on the ground that the instrument had not been duly stamped. The only exception recognised by the section is the class of cases contemplated by s. 61, which is not material to the present controversy. The only exception recognised by the section is the class of cases contemplated by s. 61, which is not material to the present controversy. Section 36 does not admit of other exceptions. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case." 8. In this view of the matter, this Court is of the opinion that both, admissibility or inadmissibility of the said documents was required to be decided by the Trial Court first. If the said documents were found to be deficiently stamped, they could be impounded and sent to the Collector (Stamps) for payment of requisite stamp duty and penalty thereon and after payment thereof, the suit could be proceeded. However, the learned Trial did not do so and proceeded ahead. 9. For the aforesaid reasons, the impugned order passed by the Trial Court is found to be not in accordance with law and therefore, the same is set-aside. Accordingly, the writ petition is allowed and the matter is remanded to the Trial Court with the direction to decide the application under Section 33 and 35 of the Indian Stamp Act, 1899 read with Section 37 and 39 of the Rajasthan Stamp Act, 1998 filed by the defendants afresh after giving opportunity of hearing to both the parties in accordance with law.