Tiru Sahu vs Mohan Sahu and Others

S. Chandrashekhar, J.—Aggrieved by order dated 05.04.2014 whereby a direction has been issued to the registry for receiving a report of Sirestedar for impounding document dated 15.05.1949, the present writ petition has been filed.

Briefly stated, T.S. No. 29 of 2007 was filed by the plaintiff seeking declaration of right, title and interest with respect to land comprised in R.S. Plot No. 191 (old) new Plot No. 244 under Khata No. 29 (old) new 42 within Khewat No. 3/3 situated at village Idd P.S. Sikidiri District - Ranchi, in which the respondent No. 1/defendant No. 1 filed an application on 11.06.2013 alleging that the document dated 15.05.1949 is not properly stamped and therefore, it was liable to be impounded. The plaintiff filed rejoinder affidavit in response to application dated 11.06.2013 and finally, the said application was dismissed vide order dated 18.12.2013 holding that photo copy of a document cannot be impounded. Thereafter, the respondent No. 1/defendant No. 1 filed a second application on 08.01.2014 with a prayer for impounding the original document dated 15.05.1949. The plaintiff objected the second application dated 08.01.2014 on the ground of res-judicata etc. However, vide impugned order dated 05.04.2014, the application filed by respondent No. 1/defendant No. 1 has been allowed. Aggrieved, the petitioner has approached this Court.

Heard the learned counsel appearing for the petitioner.

The learned counsel appearing for the petitioner submits that, once the application dated 11.06.2013 has been dismissed by the trial court, the second application dated 08.01.2014 filed by the same party with same relief/prayer could not have been allowed by the learned trial court and therefore, interference is required in the present case. It is further submitted that, a bare perusal of document dated 15.05.1949 would indicate that no consideration amount is mentioned in the said document and thus, it is a void document and therefore, it cannot be impounded for the purpose of being sufficiently stamped.

Section 2(14) of Indian Stamps Act, 1899 defines the term "instrument", to mean and to include every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record. Section 35 of the Indian Stamps Act, 1899 provides that no "instrument" chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence. It is further provided that such document shall not be acted upon, registered or authenticated by any person or by any public officer unless such "instrument" is duly stamped. The expression "instrument" occurring in Section 35 must be construed in the light of the definition Clause in Section 2(14) of the Indian Stamps Act, 1899.

In Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao and Others, , the Hon''ble Supreme Court has held as under:

"The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped, or insufficiently stamped would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. ''Instrument'' is defined in Section 2(14) as including every document by which any right or liability is, of purports to be created, transferred, limited, extended extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act." 7. There is no dispute in so far as, dismissal of application dated 11.06.2013 is concerned, however, it is apparent from order dated 18.12.2013 that the said application was dismissed only on the ground that the respondent No. 1/defendant No. 1 had prayed for impounding the photo copy of document dated 15.05.1949. In application dated 08.01.2014 the respondent No. 1/defendant No. 1 has stated in paragraph No. 2 of the said application that earlier the application dated 11.06.2013 contained typographical error and in the said application in place of original document dated 15.05.1949, a prayer was made for impounding photo copy of the said document and the said application was rejected because a photo copy of the document cannot be impounded for the purpose of Indian Stamps Act, 1899. In the impugned order dated 05.04.2014 the learned trial court has taken note of this fact and, held that the original document dated 15.05.1949 needs to be impounded and for that purpose report of Sirestedar has been called for. The contention of the learned counsel for the petitioner that the second application dated 08.01.2014 is barred by res-judicata is liable to be rejected. Issue in both the applications is different. The first application was dismissed on the ground that photocopy of a document cannot be impounded whereas, in the second application the prayer was for impounding the original document. The learned counsel for the petitioner has submitted that, document dated 15.05.1949 has been labelled by the respondent No. 1/defendant No. 1 as Sada Hukumnama in one proceeding and as a plain sale deed in other proceeding. I am of the opinion that labelling of a document by a party is of no consequence. The fact remains that the document dated 15.05.1949 falls under the definition of the term "instrument" as defined under Section 2(14) of the Indian Stamps Act, 1899. The submission of the learned counsel for the petitioner as to voidness of the said document is also liable to be rejected because the report of Sirestedar is yet to be received by the trial court.

I find no infirmity in the impugned order dated 05.04.2014 and accordingly, this writ petition is dismissed.

I. A. No. 5594 of 2014 also stands dismissed.