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2023 DIGILAW 164 (RAJ)

Harish Chand Sharma v. Purushottam Rathi

2023-01-13

SAMEER JAIN

body2023
JUDGMENT 1. Instant writ petition under Article 227 of the Constitution of India has been filed by the plaintiff-petitioner assailing the order dated 08/11/2017 passed by the learned Additional District Judge No.1, Ajmer in Civil Suit No.10/2008 whereby the Misc. Application filed by the defendant-respondent under Order 6 Rule 17 read with Section 151 CPC for making amendment in the written statement has been allowed on a cost of Rs.3000/-. 2. The case of the plaintiff-petitioner as per the material available on record is that the suit for specific performance was filed in the year 2008 wherein the written statement was filed by the defendant-respondent on 02/04/2008 and on 19/08/2008, issues were framed. On 20/01/2010, the disputed agreement was marked as an exhibit. On 11/03/2010, evidence on behalf of the plaintiff-petitioner stood completed. It was only on 21/05/2011 that the defendant-respondent filed application under Order 6 Rule 17 read with Section 151 CPC whereby it was submitted that the document in question, i.e. the agreement, is an unregistered document as well as insufficiently stamped and therefore, it is not admissible in evidence. As such, amendment to this effect was sought in the written statement which reads as under:- ^^;g fd oknxzLr bdjkjukek jktLFkku LVkWEi ,DV 1998 ds vkfVZdy 5 ds vUrxZr vi;kZIr eqnzkad ij fu"ikfnr fd;s tkus ds dkj.k lk{; esa iढ+us ;ksX; ugha gS blh Ádkj mDr vf/kfu;e ds vkfVZdy 21 ds v/khu oknxzLr bdjkjukek viathd`r gS vkSj bl vk/kkj ij Hkh oknh dk orZeku okn mDr bdjkjukes dh fofufnZ"V ikyuk fd;s tkus ds vuqrks"k ÁkIr djus ds fy;s fof/kd #i ls iks"kuh; ugha gSA** 3. The case of the defendant-respondent as per the material available on record is that the amendment sought by him in the written statement involves point of law and is vital, in the interest of justice, for proper adjudication of the case and comes within the purview of Order 6 Rule 17 CPC. 4. The learned trial court allowed the said application vide impugned order dated 08.11.2017, with a cost of Rs.3000/-, against which the present writ petition has been filed. 5. Learned counsel for the plaintiff-petitioner submitted that the present writ petition should be allowed as the application of the defendant-respondent was filed at a belated stage without any legitimate and sufficient explanation, especially when the issue was purely legal and was in in the knowledge of the defendantrespondent. 5. Learned counsel for the plaintiff-petitioner submitted that the present writ petition should be allowed as the application of the defendant-respondent was filed at a belated stage without any legitimate and sufficient explanation, especially when the issue was purely legal and was in in the knowledge of the defendantrespondent. It was contended that the application was belated on account of the fact that the agreement in question was already marked as exhibit on 20/01/2010. Learned counsel submitted that as per the judgment rendered by coordinate Bench of this Court in Jagdish Vs. Smt. Deep Shika Gar: 2013(3) RLW 2562 (Raj.) as well as the judgments rendered by Hon’ble the Apex Court in Shyamal Kumar Roy Vs. Sushil Kumar Agarwal: (2006) 11 SCC 331 ; Vidyabai & Ors. Vs. Padmalatha & Ors.: (2009) 2 SCC 409 and The State of Bihar & Ors. Vs. Modern Tent House & Ors.: (2017) 8 SCC 567 , it has time and again been held that in a suit for specific performance, even if the agreement is insufficiently stamped but if admitted in evidence, no objection or amendment can be permitted at a later stage. Learned counsel contends that the defendant-respondent cannot turn around and contend that the suit document is inadmissible in evidence, specially when the same is marked as an exhibit. Learned counsel further submit that Section 40 of Rajasthan Stamp Act, 1998 restricts the defendant-respondent from questioning a document after its admission in evidence by the Court. 6. Per-contra, learned counsel for the respondent submitted that as per provisions of Section 37, 38, 39 and 40 of the Rajasthan Stamp Act, 1998 and in the facts & circumstances of the case and as per provisions of Order 6 Rule 17 CPC, amendment can be requested at any stage and in the case in hand, the objections raised and the amendment sought are in conformity with the Rajasthan Stamps Act, 1998. He further submitted that the order impugned is not altering the nature of the suit. Learned counsel further submitted that the learned trial court, for reconciling the matter and on the question of delay, has imposed a cost of Rs.3000/-. Learned counsel has placed reliance upon the judgments rendered by the Apex Court in B.K. Narayana Pillai Vs. Parmeshwaran Pillai & Ors.: (2000) 1 SCC 712 and in Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. Learned counsel has placed reliance upon the judgments rendered by the Apex Court in B.K. Narayana Pillai Vs. Parmeshwaran Pillai & Ors.: (2000) 1 SCC 712 and in Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. (Civil Appeal No.2019 of 2007), decided on 18/04/2007. While placing reliance upon the same, he submitted that an amendment may be permitted at any stage, as per the dictum of the Apex Court, if the proposed amendment does not alter or substitute a new cause of action. The delay in filing application for amendment can be compensated by costs. He further submitted that power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice and no hyper technical approach should be adopted, rather liberal approach is warranted. The amendment is basically to avoid multiplicity of the litigation. In the light of above, he submitted that the writ petition should be dismissed with heavy costs. 7. Heard the arguments advanced by learned counsel for both the sides, scanned records of the writ petition and considered the judgments cited at bar. 8. Before adverting to the issue, it is imperative to note provisions of Order 6 Rule 17 read with Section 151 CPC, which are reproduced as under:- "Order 6 Rule 17 : Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties : Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 9. It is also important to reproduce the provisions of Sections 37 to 40 of the Rajasthan Stamp Act 1998:- 37. It is also important to reproduce the provisions of Sections 37 to 40 of the Rajasthan Stamp Act 1998:- 37. Examination and impounding of instruments (1) Every person having by law or consent of parties authority to receive evidence, and every person incharge of a public office, except an officer of a police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State when such instrument was executed or first executed : Provided that,- (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974); (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section in cases of doubt,- (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons incharge of public offices. (4) When a person incharge of a public office, during the course of inspection or otherwise, detects from an instrument or copy thereof or when it appears therefrom to the person referred to in sub-section (1) that the instrument is not duly stamped, such person shall forthwith make a reference to the Collector in that matter. (4) When a person incharge of a public office, during the course of inspection or otherwise, detects from an instrument or copy thereof or when it appears therefrom to the person referred to in sub-section (1) that the instrument is not duly stamped, such person shall forthwith make a reference to the Collector in that matter. (5) The Collector may, suo moto or on such reference, call for the original instrument for ascertaining whether it is duly stamped and the instrument so produced shall be deemed to have been produced or come before him in the performance of his functions and in case the original instrument is not produced within the period specified by the Collector, he may require the payment of the proper duty or the amount required to make up the same together with the penalty under section 44. 38. Special provisions as to unstamped receipts-Where any receipt chargeable with a duty not exceeding one rupee is tendered to or produced before any officer unstamped in the course of audit of any public account, such officer may in his discretion, instead of impounding the instrument, require a duly stamped receipt to be substituted therefore. 39. 38. Special provisions as to unstamped receipts-Where any receipt chargeable with a duty not exceeding one rupee is tendered to or produced before any officer unstamped in the course of audit of any public account, such officer may in his discretion, instead of impounding the instrument, require a duly stamped receipt to be substituted therefore. 39. Instruments not duly stamped inadmissible in evidence, etc -No instrument chargeable with duty under this Act shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that, - (a) any such instrument shall, subject to all just exceptions, be admitted in evidence on payment of, -(i) the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, and [(ii) a penalty at the rate of two percent of the amount of the deficient duty per month or part thereof for the period during which the instrument remained insufficiently stamped or twenty five percent of the deficient stamp duty, which is higher, but such penalty shall not exceed to two times of the deficient stamp duty] (b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp; the contract or agreement shall be deemed to be duly stamped. (c) nothing herein contained shall prevent the admission of any instrument as evidence in any proceeding in a criminal court, other than a proceedings under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974). (c) nothing herein contained shall prevent the admission of any instrument as evidence in any proceeding in a criminal court, other than a proceedings under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974). [(d) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 36 or any other provision of this Act.] (e) nothing herein contained shall prevent the admission of a copy of any instrument or of an oral account of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid. (f) nothing herein contained shall prevent the admission of any instrument in evidence in any court when stamp duty on such instrument has already been paid in advance in the form of a consolidated lump sum. (g) xxxxx 40. Admission of instrument, where not to be questioned- Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 71, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." 10. On perusal of the above said provisions, it is abundantly clear that the amendments in the pleadings is permissible at any stage of the suit proceedings, but with a rider that such amendments are necessary for the purpose of determining the real question and controversy between the parties. Under Order 6 Rule 17 of CPC, a proviso was also added in the year 2002 whereby a rider was introduced that the Court has to draw conclusion that if due diligence was not carried out while filing application for amendment, the same should not be considered. In the case in hand, it is true that on 20/01/2010, the alleged agreement was marked as an exhibit and admitted as evidence and the evidence was closed on 11/03/2010. The application for amendment was only filed on 21/05/2011 i.e. after lapse of approximately one year. The learned trial court has allowed the same on deposit of a cost of Rs.3000/-. The application for amendment was only filed on 21/05/2011 i.e. after lapse of approximately one year. The learned trial court has allowed the same on deposit of a cost of Rs.3000/-. The learned trial court, while considering provisions of the Stamp Act, judgments of the higher courts and considering that the document in question is deficitly stampped, and if stamp duty is paid thereupon no prejudice will be caused, has allowed the amendment with a cost of Rs.3000/- to compensate the delay. 11. In the opinion of this Court, as per provisions of Order 6 Rule 17 CPC amendment can be carried out at any stage. In the case in hand, the learned trial court has held that for determination of the real questions and controversy, the amendment is necessary. Even the mandate of Sections 37 to 39 of the Rajasthan Stamp Act, 1998 reproduced (supra) cast an obligation upon the Court that if the instruments are not duly stamped, the same should be examined and impounded. If the instruments are not duly stamped, they cannot be considered inadmissible in evidence. 12. A reading of the provisions of Sections 37 to 40 of the Rajasthan Stamp At, 1998 (supra), a pervasive, constructive and harmonious interpretation confirms the point that a document with deficit stamp duty should be duly considered. The same is inadmissible piece of evidence till appropriate stamp duty is deposited on the same. 13. In the light of the above, the amendment proposed by the respondent, which was allowed by the learned trial court, was justified. 14. The judgments as cited by learned counsel for the petitioner, referred above, are on different facts. The provisions of Section 40 of the Rajasthan Stamp Act, 1998 cannot be read in isolation but have to be read in conjunction with the provisions of Sections 37 to 39 of the Rajasthan Stamp Act, 1998. The provisions of Order 6 Rule 17 of CPC categorically permit for raising of amendment "at any stage". There is no embargo, restriction or constraint which is imposed under Order 6 Rule 17 of CPC. The only requirement which is to be met out is that the amendment is necessary for determination of real questions. The provisions of Order 6 Rule 17 of CPC categorically permit for raising of amendment "at any stage". There is no embargo, restriction or constraint which is imposed under Order 6 Rule 17 of CPC. The only requirement which is to be met out is that the amendment is necessary for determination of real questions. In the factual scenario read with legal provisions of the Stamps Act in the suit for specific performance, the amendment allowed by the learned trial court was quite necessary and essential for determining the real question and controversy and while passing speaking order, the learned trial court has come to such conclusion. 15. The judgments cited by learned counsel for the petitioners are primarily on inadmissibility of the document. In the case in hand, there is no dispute regarding making the present document, i.e. the agreement in question, as an exhibit and therefore, the judgments cited are distinguishable. 16. The judgments of B.K. Narayana Pillai (supra) and Usha Balashaheb (supra), as cited by learned counsel for the defendant-respondent, are squarely applicable on the point that the purpose and object of the provisions of Order 6 Rule 17 of CPC is to allow either party to alter or amend his pleading which is "just" and "necessary" to resolve the real controversies. The Apex Court has held that liberal approach should be the general rule, particularly in the cases where the other side can be compensated with costs and technicalities of the law should not be permitted to hamper the Court in the administration of justice. The amendments in the pleadings, in the opinion of this Court, was rightly allowed to avoid the multiplicity of litigation. It is well settled that rules of procedure are hand-maid of justice and therefore, even if there is some delay, the trial Court has rightly imposed cost rather than to decline the amendment, as such denial would have led to denial of justice. 17. Relying upon the reasoning given by the learned trial court, considering the provisions of Sections 37 to 40 of the Rajasthan Stamps Act, 1998 as well as the provisions of Order 6 Rule 17 CPC and the judgment of the Apex Court in B.K. Narayana Pillai (supra), more particularly para 3 & 4, this Court is inclined to dismiss the present writ petition and uphold the order impugned. 18. 18. Consequently, the present writ petition is dismissed and the order impugned is upheld. All pending application stand dismissed. 19. The interim order stands vacated.