S. Vivekananda vs Jalaja

S. Sujatha, J.—Order on I.A. No. 8 dated 15.1.2013 in O.S. No. 865/2007 on the file of Principal Civil Judge (Sr.Dvn.), Bangalore is questioned by the petitioner in this petition.

The petitioner/plaintiff filed O.S. No. 865/2007 against the respondents/ defendants for the relief of declaration of title, mandatory injunction, possession and such other reliefs and the same is pending adjudication before the trial Court. Defendant No. 4/respondent No. 4 resisted the suit, filed the written statement, led evidence and got marked Exhibits. The petitioner/plaintiff filed an application under Sections 33, 34 and 41 of the Karnataka Stamp Act(hereinafter referred to as "The Act" for short) read with Order XIII Rule 8 under section 151 of CPC seeking an order of impounding the documents i.e. agreement of sale dated 27.07.2002, advance receipt dated 09.06.2003, lease agreement dated 09.01.2004 marked by respondent No. 4/defendant No. 4 as Exs.D.1 and D2.

The application was opposed by respondent No. 4/defendant No. 4 by filing a statement of objections inter alia contending that he is not claiming his title over the suit schedule property based on Exs.D.1 and D2 and the same were produced only for collateral purposes to establish the fact that the suit schedule property was a vacant site consisting of 1 shed, which was leased out by respondent No. 3/defendant No. 3 in favour of respondent No. 4/defendant No. 4.

The Court below observed that the documents which are sought to be impounded have been produced only for collateral purposes and as such cannot be impounded to collect the stamp duty and accordingly, by the impugned order dismissed the application.

Assailing the said impugned order, learned counsel for the petitioner contended that as per Sections 33 and 34 of the Act irrespective of the fact that the same are used for any purpose in the proceedings, if the document is insufficiently stamped, it is required to be impounded and relied on the following Judgments:--

"(1) K.B. Jayaram and Another Vs. Navineethamma and Others,

(2) Doddabasappa Vs. Gurubasappa (Deceased) by L.Rs. and Others,

(3) Krishna Vs. Sanjeev, "

Per contra, the learned counsel for respondent No. 4/defendant No. 4 strongly relied on Section 35 of the Act to substantiate his argument that where an instrument has been admitted in evidence unopposed, such an admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Further, a reliance was also placed on Rule 82 of the Karnataka Civil Rules of Practice and Order XIII Rule 4 of CPC. Learned Counsel has also relied on the following Judgments in support of his arguments and sought for the dismissal of the writ petition:

"(1) Javer Chand and Others Vs. Pukhraj Surana,

(2) BARIUM CHEMICALS LTD. v. VISHWA BHARATHI AGARWAL ((2009) 16 SCC 262)

(3) Shyamal Kumar Roy Vs. Sushil Kumar Agarwal,

(4) K. AMARNATH v. PUTTAMMA (ILR(1999) 49 KAR. 4634)

(5) Smt. Vijayalakshmi Vs. Nagaraju, "

After hearing the parties and perusing the material on record, it is noticed that the 4th respondent/4th defendant has entered the witness box to tender the document in the examination-in-chief. It was open to the opposite party to raise an objection regarding the admissibility of the document but such an objection was not raised by the petitioner. The fourth respondent has stated in his statement of objections to the I.A. that the schedule property was acquired by one Sri K Srinivasa Rao for himself and on behalf of his family. After his death, in furtherance of the agreement of sale dated 17.07.2002, wife and children of said K Srinivasa Rao has sold the suit schedule property to the 3rd defendant/3rd respondent under registered sale deed date 19.04.2005, in turn the 3rd respondent sold the same in favour of the 4th respondent/4th defendant under a registered sale deed dated 29.03.2006. It was the case of the respondent No. 4/defendant No. 4 that the alleged agreement typed on Rs. 100/- stamp paper, was produced and marked as exhibit only for the collateral purposes to establish at the inception that the suit schedule property was a vacant land which was leased out to him by the 3rd respondent/3rd defendant.

Section 35 of the Act contemplates that where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58 be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. Rule 82(1) of the Karnataka Civil Rules of Practice provides that only documents admitted in evidence shall be marked as exhibits. The exhibits being admitted in evidence are marked as Exs.D.1 and D.2 which is now called to be impounded for not sufficiently stamped. In the present case, the exhibits were marked without any objections from the petitioner''s/plaintiffs side.

The Judgments relied on by the learned counsel for the petitioner are rendered in a different context and are not applicable to the facts of the present case.

The Apex Court in the case of Shyamal Kumar Roy Vs. Sushil Kumar Agarwal, has observed thus:

"If an instrument, though understamped sought to be admitted in evidence is admitted without the other side objecting to it, the right to reopen the issue is lost - Thus, the appellant having consented to the document being marked as an exhibit now cannot object to it on the ground that it was understamped - Indian Stamp xxxxxx" 11. This Hon''ble Court in the case of Smt. Vijayalakshmi Vs. Nagaraju, has held as under:

"7. Keeping in mind the observations of this Court and that of the Apex Court in the reported opinions, supra, it is needless to state that Ex.D.1, marked in evidence unopposed on 28/1/2010 before the Trial Court, I.A. No. 6 under Order 13 Rule 4 CPC filed by the petitioner to recall the said order marking the document on the premise that the document was insufficiently stamped, was justifiably rejected.

Even otherwise, the document termed as a mortgage deed, though unregistered but on stamp paper valued Rs. 100/-, it is elsewhere held that, for a collateral purpose of establishing the nature of possession of the property by a party, is admissible in evidence even if insufficiently stamped. It is not known as to how the document is purported to be put to use by the defendant i.e., as to whether it is for establishing the nature of possession of the defendant over the suit schedule property or for any other purpose and therefore on that ground too, the petitioner is disentitled to question the order dt. 28/1/2010, making the unregistered mortgage deed as Ex.D.1 in the suit."

Applying the principles of law enunciated by the Hon''ble Court in the Judgments cited supra, it is clear that the exhibits marked were unopposed by the petitioner/plaintiff duly admitted in evidence cannot be called in question. The Respondent No. 4 is a stranger to the agreement of sale, he cannot enforce the same. Such being the case, exhibits D1 and D2 being marked only for collateral purposes and as no title is claimed by the respondent No. 1/defendant No. 1, on the basis of these exhibits, the Court below has rightly dismissed the application filed by the petitioner which cannot be found fault with. In the result, petition being devoid of merits is accordingly rejected.