BHARATHI & Ors vs SRI.JAYENDRA C

The plaintiffs have filed the present writ petition against the order dated 16.1.2015 passed on I.A.No.20 made in O.S.No.3958/2006, rejecting

the application filed under Order 47 Rule 1 read with Section 151 of the Code of Civil Procedure to review the order dated 20.1.2014.

The petitioners/plaintiffs filed O.S.No.3958/2006 for partition and separate possession in respect of the suit schedule properties contending that

the suit schedule properties are the joint family properties of the plaintiffs and the defendants. The defendants filed their written statement, denied

the entire plaint averments and contended that the suit filed by the plaintiffs is not maintainable.

Thereafter, the plaintiffs filed an application under Order 7 Rule 14 of the Code of Civil Procedure seeking for production of the unregistered

paalu patti dated 6.9.1998, which came to be allowed. Subsequently, the defendants filed objections for marking of the said unregistered

document. The Trial Court considering the objections, by the order dated 16.1.2014, directed the office to calculate duty and penalty payable on

the unregistered paalu patti dated 6.9.1998. By the order dated 20.1.2014, the Trial Court directed the plaintiffs to pay a sum of `2,75,000/-.

Against the said order, the plaintiffs filed a writ petition before this Court in W.P.No.7990/2014. This Court after hearing both the parties, by its

order dated 8.9.2014 disposed of the writ petition, mainly on the ground that the note with regard to the payment of stamp duty was put forth by

the registry and on the said date, there was no representation on behalf of the plaintiffs. Therefore, liberty was reserved to the plaintiffs to file an

appropriate application explaining the reasons for default and considering their submissions on that aspect.

Subsequently, the review application came to be filed on 28.1.2014 under Order 47 Rule 1 read with Section 151 of the Code of Civil

Procedure. The Trial Court considering the application and objections, by the impugned order dated 16.1.2017, rejected the said application.

Hence, the present writ petition is filed.

I have heard the learned counsel for the respondents.

The learned counsel for the respondents submit that throughout the present writ petition, there was no interim order. Subsequently, the

petitioners/plaintiffs filed an application under Section 37(1) and (2) of the Karnataka Stamp Act, 1957 read with Section 151 of the Code of Civil

Procedure, to send the unregistered paalu patti dated 6.9.1998 to the Deputy Commissioner for adjudication.

The said application came to be allowed by the Trial court on 23.11.2017 and the matter was referred to the Deputy Commissioner for

collection of duty and penalty and directed the plaintiffs to appear before the Deputy Commissioner after payment of duty and penalty and the

Deputy Commissioner to report the same within 45 days from the date of the order.

The plaintiffs have filed I.A.No.25 to send the unregistered paalu patti to the Deputy Commissioner. The same is the relief sought in the present

writ petition pending consideration. That is why the learned counsel for the petitioners, conveniently, is not present before the Court.

The Trial Court considering the review application filed by the petitioners has recorded a finding that there is no dispute with regard to the

power of this Court to review the order, which is apparent on the face of the record. On going through the unregistered paalu patti , relied upon by

the plaintiffs, it is clear that the same would fall within the meaning of bond and stamp duty to be paid under Article 12 read with Article 39 of the

Karnataka Stamp Act. The payment of stamp duty and penalty stipulated under Article 12 read with Article 39 of the Karnataka Stamp Act is

entirely different from the payment of court fee under Section 32(2) of the Act. Therefore, the contention of the plaintiffs that payment of court fee

under Section 35(2) takes away the provisions of Article 12 read with Article 39, is not maintainable. Therefore, the calculation made by the office

to pay the stamp duty and penalty required under Article 39 and 12 of the Stamp Act, is in accordance with law. There is no error apparent on the

face of the record to review the order and calculation made by the office. Accordingly, the application came to be rejected.

In view of the subsequent development that the application filed by the plaintiffs under the provisions of 37(1) and (2) of the Karnataka Stamp

Act for referring the unregistered paalu patti dated 6.9.1998 to the Deputy Commissioner for adjudication, the impugned order passed by the Trial

Court is justified. No interference is caled for. Accordingly, the writ petition is dismissed.

The learned counsel for the respondents submits that the matter is posted for arguments. The suit is of the year 2006. Now we are in 2018.

Therefore, the Trial Court is directed to expedite the suit itself.