Shri Saran Dass and Others vs Shrimati Nirmala Devi and Others

Surinder Sarup, J.—This is a second appeal by the Plaintiffs, who have been non-suited by both the Courts below, i.e. the Court of Shri Rameshwar Sharma, Addl. District Judge (II). Kangra at Dharamshala vide judgment and decree dated 7-10-1988 and the Court of Shri B. L. Soni, Sub-Judge, Ist Class, Kangra vide judgment and decree dated 23 8-1985.

It is not necessary to state the detailed facts because the Courts below have nun-suited the Plaintiffs mainly on the ground that document mark ''X* could not be read in evidence being compulsorily registrable and this not being the case, the same cannot be considered and, therefore, the plea of the Plaintiffs to recover back the possession of the suit land cannot be considered.

The learned Counsel, for the Plaintiffs-Appellants has cited an unreported decision of this Court in Civil Revision No. 23 of 1980 (Saran Dass and Ors. v. Smt. Situ and Ors.), decided on 8-4-1988. It has been held therein that where a document regarding relinquishment of tenancy rights requiring stamp duty to be paid and also registration, neither of the two things having been done, the lower Court was in error not considering the same because it was open to it in the interest of justice to allow the Plaintiff to pay the requisite stamp duty and also penalty which could be imposed by the Court in its discretion.

In the present case, instead of non-suiting the Plaintiffs on this technical ground, they could have been asked to pay the requisite stamp duty as also the penalty as fixed by the Court. Moreover, according to the considered view of this Court, which is also supported by case law, which is not within the memory now, even u/s 17 of the Registration Act, a document which is inadmissible in evidence on account of stamp duty not having been paid and not having been registered can still be looked into for the collateral purpose of showing as to which party is in possession.

Be that as it may, the best course in the present case, in the interest of justice would be to remand the case back to the trial Court with the direction that the Plaintiffs be allowed an opportunity to pay the requisite stamp duty on the document mark ''X''. The lower Court in its discretion will be a liberty to impose reasonable penalty also as deemed fit in the facts and circumstances of the case.

Consequently, this appeal is allowed. The impugned judgments and decrees of the Courts below are set aside. The case is remanded back to the trial Court, i.e. the Court of Sub-Judge, Ist Class Kangra for allowing the Plaintiffs opportunity to pay the requisite stamp duty on the document mark ''X''/Ex PW 1/A. The Court below shall also in it discretion impose penalty for late submission of the stamp duty. In the circumstances, there will be no order as to costs.

The parties are directed to appear before the trial Court through their learned Counsel on 8-5-1997. Since the matter is on old one, the Court below shall comply with the directions of this Court within a month and thereafter the suit be decided expeditiously.