Sri M.R. Rajath vs Sri Rajagopal

Subhash B. Adi, J.—This writ petition is directed against the order dated 18.2.2008 passed on I.A. No. 24 in O.S. No. 125/2003 on the file of the Civil Judge, Sr.Dn., Doddaballapur.

The petitioner is the plaintiff. He has filed a suit for declaration, declaring that the plaintiff is the owner in possession of the suit schedule properly and for declaration that judgment and decree passed in O.S. No. 41/2003 on the file of the Civil Judge, Sr.Dn., Doddaballapur is not binding and for permanent injunction.

In the said suit, the defendant got a document named as ''agreement of sale'' marked in his evidence as Ex.D-1 dated 4.11.2002. It is thereafter, the petitioner filed an application u/s 33 of the Karnataka Stamp Act (in short ''the Act'') requesting the Court for impounding the agreement of sale produced by the defendant The trial Court by the impugned order rejected the said application holding that the document produced by the defendant is not an instrument which comes within the purview of Article 5(e)(i) of the Act and also observed that the document has been already marked in the evidence and it can not be impounded. In this regard, the trial Court relied on the judgment of this Court reported in Smt. Malliga Paneer Selvam Vs. Sri Raja Sathyanarayana Shetty and Others, and rejected the application.

Learned Counsel for the petitioner submits that it is the duty of the Court to consider the nature of document and find out as to whether it is property stamped or not and if it is not property stamped, it should have impounded the document. He further submitted that Sections 33 and 34 requires that the Court should exercise its power and impound the document. He also submitted that whether it is the document used for proving the issues involved in the suit or for any collateral purpose, independent of any transaction. The document once produced in the evidence is required to be admitted.

To support his case, he relied on a judgment of the Supreme Court in the matter of Avinash Kumar Chauhan v. Vijay Krishna Mishra reported in 2009 Supreme 158. He also relied on another judgment of this Court reported in 2003(7) KarLJ 38 in the matter of Krishna v. Sanjeev and submitted that the document is required to be marked in consonance with the procedure contemplated under Order 13 Rule 4 CPC and if it is not accordingly marked, the document is required to be impounded.

On the other hand, learned Counsel for the respondent submitted that there is a bar u/s 35 of the Act to call in question the admission of the document except provided u/s 58 of the Act and submitted that when the document was tendered in the evidence, plaintiff had not raised any objections. The Court considering the nature of the document has permitted the defendant to produce the same in the evidence as Ex.D-1. Plaintiff has cross examined the defendant and has subsequently fifed an application and such application is not maintainable. Marking of the document means admitting the same in the evidence.

It is no doubt true that the Court in duty bound to consider title nature of transaction, requirement of payment of stamp duty and also determination of stamp duty, penalty and impounding. However, Section 33 of the Act prohibits questioning of admission of document, once it is admitted in the evidence. However, exception is Section 58 of the Act i.e., in case of revision or appeal, aggrieved party is at liberty to raise the grounds in appeal or revision, In this case, it is not in dispute that the document has been already marked in the evidence without any objection. The Court has also considered the document and has permitted the document to be marked in the evidence of defendant. If that is so, now it is not open to the petitioner to question the admission of document in view of the provisions of Section 35 of the Act. However, liberty is also there to question the same in appeal or revision if the decree goes against him.

As far as compliance with Order 13 Rule 4 is concerned, this Court has held in the judgment of Krishna v. Sanjeev reported in 2003 (7) KarLJ 38, that admission of document in the evidence is a judicial Act whereas, marking is a ministerial Act. The document has been admitted in the evidence. Even if there is any lapse in the run compliance of Order 13 Rule 4, it does not vitiate the admission of the document in the evidence. If there is any failure in the ministerial Act, it does not take away the admission of the document marked in the evidence.

In these circumstances, I do not find airy grounds to interfere. Petition stands dismissed.