Smt. Lalithamma Alias Lalitha Bai vs T.R. Ramakrishna

Aravind Kumar, J.—Respondent is the plaintiff in SC No. 1075 of 2014, which suit has been filed for evicting the petitioner/defendant from the premises No. 18, 4th ''B'' Cross, Kathriguppe, Vivekanandanagar, Opposite KEB, 3rd Stage, Banashankari, Bangalore, morefully described in the plaint at Annexure-D.

On service of suit summons defendant has appeared and has filed the written statement by denying the averments made in the plaint and has specifically contended that there is no relationship of landlord and tenant. Parties have tendered evidence and during the course of evidence defendant sought for production of purported agreement of sale dated 7-8-1995 said to have been executed by the mother of plaintiff in favour of defendant and same was sought to be introduced in evidence. At that juncture, Trial Court impounded the said document. Subsequently, a memo came to be filed by defendant on 14-9-2015 with a prayer to return the said agreement for being produced before the jurisdictional District Registrar for payment of duty and penalty as per memo dated 14-9-2015. Trial Court by order of even date accepted the memo and ordered for return of original agreement. Subsequently, plaintiff objected for return of said document by filing objections contending inter alia that order passed on 28-7-2015 directing the registry of Trial Court to calculate the stamp duty and penalty on the alleged agreement dated 7-9-1995 cannot be recalled particularly when registry has calculated the duty and penalty at Rs. 4,22,675/- and when the matter was posted for hearing on said calculation made by the registry, defendant instead of submitting the arguments on such calculation filed a memo requesting the Court to return the alleged agreement dated 7-8-1995, which has been allowed by the Trial Court without granting an opportunity to plaintiff to address the arguments. Thereafter, Trial Court after considering the rival contentions by order dated 2-12-2015 Annexure-G rejected the memo filed by defendant by recalling the order dated 4-9-2015 and directed payment of duty and penalty by defendant on the agreement dated 7-8-1995.

Seeking recall of this order namely order dated 2-12-2015, Annexure-G an interlocutory application - I.A. No. 11 - Annexure-B came to be filed by defendant under Section 151 of Civil Procedure Code, 1908. This application was opposed by plaintiff by filing objections as pier Annexure-C. Trial Court after considering rival contentions and taking note of the judgment of Division Bench in the case of Digambar Warty and Others v. District Registrar, Bangalore Urban District, Bangalore and Another, ILR 2013 Kar. 2099, rejected the said application with costs on the ground that defendant is attempting to drag on the proceedings. Said order dated 25-2-2015 - Annexure-A is impugned in the present writ petition.

It is the contention of Sri C.S. Kumar, learned Counsel appearing for petitioner that Trial Court was not justified in recalling its earlier order passed on 14-9-2015 by order dated 2-12-2015 - Annexure-G and as such, it ought to have recalled order dated 2-12-2015 and restored the order passed on 14-9-2015 and thereby it should have permitted the defendant to return the agreement of sale dated 7-8-1995 for being produced before the jurisdictional District Registrar for payment of appropriate duty and penalty, which could have been determined by the District Registrar. As such, he submits that impugned order is liable to be set aside.

Having heard the learned Counsel appearing for petitioner and on perusal of records it would clearly indicate that Trial Court had impounded the agreement of sale dated 7-8-1995 by order dated 28-7-2015 after hearing the learned Advocates appearing for the parties and had directed the registry to calculate the duty and penalty. Pursuant to such direction issued, registry quantified the duty and penalty payable by defendant at Rs. 4,22,675/-. Thereafter, matter came to be listed before the Court for considering the payment of duty and penalty. When it was at that stage, defendant instead of paying the duty and penalty and without serving the copy of memo dated 14-9-2015 defendant sought for take return of the agreement dated 7-8-1995, which had already been impounded, to be returned for being produced before the District Registrar. Undisputedly, Trial Court while hearing on memo dated 14-9-2015 has permitted the defendant to obtain return of original agreement dated 7-8-1995, which order was without hearing the plaintiff or his Counsel and said memo was not even served on the learned Counsel appearing for plaintiff. Because of this precise reason, Trial Court subsequently after hearing the learned Advocates appearing for both the parties by order dated 2-12-2015 recalled its order dated 14-9-2015. In that view of the matter, prayer sought for by defendant in I.A. No. 11 for recall of order dated 2-12-2015 was without merit and as such, Trial Court has rightly rejected the application without recalling its order dated 2-12-2015.

It is appropriate and apt to observe at this juncture itself that Trial Court has noticed that under Sections 33 and 34 of the Karnataka Stamp Act, 1957 an insufficiently stamped document when tendered in evidence before Court has to impound the said document and as such, it impounded said document by order dated 28-7-2015 and there was no question of permitting the defendant to take return of said document for being produced before the District Registrar for quantification of duty and penalty and also when duty and penalty has been quantified by the Registry on direction of Trial Court.

The law laid down by the Division Bench in the case of Digambar Warty and also the judgment in the case of Suman v. Vinayaka and Others, 2014 (1) KCCR 881 Trial Court has rightly held that defendant could not have sought for return of said document and as such, it has rightly refused to recall order dated 2-12-2015. No error has been committed by the Trial Court calling for interference.

Hence, writ petitions stand rejected. However, it is made clear that costs which has been imposed by Trial Court for rejecting the I.A. No. 11 shall be the costs in the cause namely in the event of plaintiff succeeding in the suit defendant could be liable to pay said costs and it shall form part of the decree.