IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CIVIL REVISION PETITION No.76 OF 2017 BETWEEN 1. Mr. A Enaya Thulla Khan, S/o. Mr Aziz Khan, Aged about 54 years, 2. Mrs. Siddiqa Begum, W/o. Mr. A Enaya Thulla Khan, Aged about 53 years, Both R/at # 22/1, 1st Floor, Sabapathy Lane, K.Kamaraj Road Cross, Bengaluru-560001.
(By Sri. M.D.Raghunath, Advocate) AND Mr. S.S.Sirohi, S/o. Mr. K.S.Sirohi, Aged about 56 years, R/at #43/2 Annaswamy Reddy Colony, Mudaliar Road, Bengaluru-560042.
(By Sri. K.Narayana, Advocate) …Petitioners …Respondent This Civil Revision Petition is filed under Section 18(1) of the Karnataka Small Causes Court Act, against the order dated 23.01.2017 passed on I.A.No.4 & I.A.No.5 in S.C.No.15143/2015 on the file of the XV Additional Court of Small Causes Judge and XXIII ACMM Mayohall Unit, Bengaluru (SCCH 19), partly allowing the I.A.No.4 filed under Order 18 Rule 17 read with Section 151 of CPC., and partly allowing the I.A.No.5 filed under Order 8 Rule 1(A) read with Section 151 of CPC., for the purpose of marking the original agreements executed in his favour in respect of the suit schedule property.
This Civil Revision Petition coming on for admission, this day, the Court made the following :
ORDER Heard the petitioners’ counsel and the respondent’s counsel at the time of admission.
2. The petitioners have assailed the order of the trial court on I.A.5 filed in S.C.No.15143/2015. The petitioners are the plaintiffs and the respondent is the defendant. Suit is for ejection of the respondent. It appears that the respondent filed an application under Order 8 Rule1(a) CPC and produced two documents viz., original rental agreement dated 25.07.2012 and original deed of lease dated 05.06.2014. The petitioners objected to this application on the ground that these two documents were insufficiently stamped and unregistered. But the trial court came to conclusion that these two documents could be received in evidence subject to payment of deficit stamp duty and penalty.
3. The learned counsel for the petitioners submits that the period of lease is more than eleven months and therefore the documents should have been registered. Stamp duty was also not paid correctly on these two instruments. The trial court’s observation that documents can be received in evidence on payment of deficit stamp duty and penalty is erroneous. Payment of stamp duty and penalty does not cure another defect of non registration. In support of his argument he relies on a judgment of the Hon’ble Supreme Court in the case of Park Street Properties Private Limited Vs. Dipak Kumar Singh and another – (2016) 9 SCC 268. Therefore it is his submission that the impugned order is to be set aside.
4. The learned counsel for the respondent submits that if the documents are found to be improperly stamped, Stamp Act provides for payment of deficit duty and penalty. If the party who relies upon his document is ready to pay the required deficit stamp duty and penalty, the court can rely upon it. It is his further argument that Section 49 of the Registration Act is not a bar for marking unregistered document in evidence. For collateral purpose the said document can be marked. When he is specifically questioning as to why this document is to be marked from the respondent’s side, his submission is that the respondent wanted to prove the period of tenancy.
5. Having heard both sides, it is to be stated that Section 107 of Transfer of Property Act makes it very clear whenever lease is executed for a period of one year or more, it requires registration. If the instrument is not sufficiently stamped according to law, no doubt it can be cured by paying the deficit stamp duty and penalty, but it does not cure another defect for want of registration. Indeed Section 49 of the Stamp Act provides for marking an unregistered instrument for a collateral purpose. The courts cannot simply mark an unregistered document for collateral purpose without ascertaining as to what actually is the collateral purpose for which the document is to be marked. Party producing the document has to disclose to the court the purpose for which document is being marked. If the purpose satisfies the ambit of collateral purpose and if the court is satisfied that the purpose is really collateral, it can be marked or otherwise there is no scope for marking the document under Section 49 of the Act. So far as the period of lease is concerned, it does not fall within the scope of collateral purpose if period itself is at dispute. In that event the period of lease is one of the terms of the document and therefore compulsory registration is necessary if lease period is for one year or more. In this case, if the respondent wants to establish the period of lease, the document sought to be produced by the respondent cannot be made use of. The trial court has arrived at an erroneous conclusion that the documents can be marked for collateral purpose. In this view the revision petition succeeds. Consequently petition is allowed. Order of the trial court on I.A.5 is set aside.
Sd/- JUDGE sd