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2023 DIGILAW 500 (RAJ)

Ram Sukh v. Sohni

2023-02-13

NUPUR BHATI

body2023
ORDER : (Nupur Bhati, J.) This writ petition has been preferred by the petitioner claiming for following reliefs:- "a) By an appropriate writ, order or direction the impugned order dated 11.08.2021 (Annexure-8) passed by learned Civil Judge (J.D.) Jayal in Civil Suit No.06/2014 may kindly be quashed and set aside to the extent of rejecting the application. b) The application (Annexure-6) filed by the petitioner may kindly be allowed. c) Any other appropriate order or direction which this Hon'ble Court considers just and proper in the facts and circumstances of this case may kindly be passed in favour of the petitioner." 2. Learned counsel for the petitioner further submits that a bare perusal of Section 39 of Rajasthan Stamps Act, 1998 shows that no document can be admitted in evidence for any purpose by any person having by law or consent of parties to receive evidence unless such instrument/document is duly stamped however, there is a proviso to the Section 39 where certain exemptions have been laid down. He also submits that if the exemptions so provided in the Section 39 have been complied with then the patta in question could have been admitted in evidence and that the exemptions so provided in the Section 39 of the Act have not been fulfilled by the respondents and therefore, the patta in question could not have been admitted in evidence. 3. Learned counsel for the petitioner places reliance upon the judgments passed by this Court and Jaipur Bench in the cases of Ramesh Chandra and Ors. v. Addl. District Judge No.1, Chittorgarh and Ors. in S.B. Civil Writ Petition No.4696/2016 decided on 16.05.2016, Harilal Chowdhary v. Addl. District and Session Judge No.2, Jaipur Metropolitan, Jaipur and Anr. in Civil Writ Petition No.6737/2013 decided on 10.12.2014, Vedprakash Rathor and Anr. v. Munshiram Jattav and Ors. in Civil Writ Petition No.6307/2019 decided on 01.11.2019, Batti Lal Meena v. Manmohan Meena and Ors. in Civil Writ Petition No.8508/2008 decided on 01.04.2019. 4. Learned counsel for the petitioner submits that there was a specific objection taken by the petitioner that the patta was not only unregistered but also unstamped and therefore, in such circumstances, the same was not admissible as evidence, however the learned Court below has considered only one aspect of the matter and the objection in regard to the document being unstamped has not been considered while dismissing the application of the petitioner. 5. Learned counsel for the petitioner placed reliance upon Section 39 of the Rajasthan Stamps Act, 1998 (hereinafter The Act of 1998). 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, whichever 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 of 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). (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. (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) nothing herein contained shall prevent the admission of any instrument in any court when such document 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. 6. Learned counsel for the respondent submits that the learned Court below has rightly decided the application filed by the petitioner while considering all the aspects of the matter. 7. Heard learned counsel for the parties. 8. Having considered the relevant Section 39 of the Act of 1998, and looking into the aforementioned case laws, the same being an admitted position that the instrument has to be mandatorily stamped for the purpose of taking the instrument as admissible in evidence and if the insufficient stamp duty with the penalty is paid then the document shall be admitted in evidence. The learned Court below while deciding the application vide order dated 11.08.2021 has not considered the objections of the petitioners that the patta in question was unstamped document and only the other objections taken by the petitioners as the patta was unregistered has only been considered in the Court below. 9. Looking to the aforementioned submissions and the facts and circumstances of the case, the writ petition is allowed and the impugned order dated 11.08.2021 passed by learned Civil Judge and Judicial Magistrate, Jayal, Nagaur is hereby quashed and set aside. 10. All pending applications stands disposed of.