0IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.9344/2017 (GM-CPC) BETWEEN:
Velmurugan.G S/o Govindarajalu, Aged about 48 years, (Proprietor of Sri Murugan Motors R/a No.467, Ejipura Main Road, Near Ejipura Ring Road, Vivekanagar Post, Bangalore-560 047. And No.4, 1st Floor, 22nd A Cross, Ejipura, Viveknagar Post, Bangalore-560 047.
. . . Petitioner (By Sri. Munkundan. R & Sri T.K. Rajagopal, Advocates) AND:
1. Munikrishnappa @ Munikrishna.M S/o Late Muniswamappa, Aged about 72 years, Residing at No.54, 30th Cross, Munikrishnappa road, Near Ejipura Ring Road, Ejipura, Vivekanagar Post, Bangalore-560 047.
2. M.Arun Kumar S/o Munikrishnappa, Aged 42 years, Residing at No.54, 30th Cross, Munikrishnappa road, Near Ejipura Ring Road, Ejipura, Vivekanagar Post, Bangalore-560 047.
. . . Respondents (By Sri. V.F. Kumar, Advocate) THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO SET ASIDE THE IMPUGNED ORDER DATED 07.02.2017 PASSED BY VI ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN O.S.NO.2047/2015 AT ANNEXURE-A, ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned advocates appearing for the parties.
Perused the records.
2. Order dated 07.02.2017 Annexure– ‘A’ passed by the learned City Civil and Sessions Judge, Bengaluru, in O.S.No.2047/2015, holding there is no necessity to impound rental agreement Ex.P15 for the present for collection of stamp duty and also rejecting the prayer made by the defendant to impound the sale agreement dated 27.06.2011 placed on record by the plaintiffs have been called in question.
3. Respondents herein have instituted the suit O.S.No.2047/2015 against the writ petitioner for ejectment from the suit schedule property. The defendant on service of summons has appeared, filed written statement Annexure – F, denied the averments made in the plaint and has contended that he has been in possession of the suit property unauthorizedly from 10.05.2000 and has perfected his title to the suit property by adverse possession. The jural relationship of land lord and tenant between the petitioner and respondents has been denied. During the course of trial, plaintiffs produced agreement of lease dated 02.01.2012, Annexure – C in their evidence and same came to be marked as Ex.P-15 on 18.03.2016 and it was subject to objection raised by the defendant. In addition to it, an unmarked sale agreement dated 27.06.2011 has also been placed on record by plaintiffs, but it was not marked, since objection was raised by the defendant. The trial Court has held said document has nothing to do with plaintiffs or defendant and they are not parties to the said instrument and has also held that plaintiffs had stated that they are not willing to make use of the said instrument in their evidence and as such rejected the contention of the defendant to impound the agreement of sale dated 27.06.2011.
4. It is trite law that when a document is introduced in evidence, and when the opposite party raise objection with regard to its marking on the ground of insufficiency of stamp duty or want of registration, Court is required to record its finding with regard to the admissibility of the said document, particularly, when it is contended said document is insufficiently stamped and there cannot be postponement of decision thereon. In the instant case, document styled as “Rental Agreement” which is dated 02.01.2012 (Photo copy) came to be marked as Ex.P-15 and it is said to contain original signature of the defendant. Records do not disclose about plaintiffs having called upon by the defendant to produce the original rental agreement dated 02.01.2012 said to be in possession of defendant.
No foundation has been laid by the plaintiffs with regard to tendering secondary evidence. As such, it is intriguing as to how a photocopy came to be marked. Be that as it may. The fact remains that photocopy and rental Agreement dated 02.01.2012 came to be marked as Ex.P-15 which was also subject to objection raised by the defendant. As such, it was incumbent upon the trial Court to adjudicate the objections so raised and record its findings thereon which exercise has not been undertaken by this court for reasons best known. As such, deferring its decision on the sufficiency or otherwise of the instrument with regard to the stamp duty under the impugned order cannot be sustained.
5. Insofar as the sale agreement dated 27.06.2011 which has been produced by the plaintiffs in the proceedings is not in dispute. Section 33 of Karnataka Stamp Act, 1957 would clearly indicate when a document is tendered in judicial proceedings and if it is found by the Court that it is insufficiently stamped, a statutory duty cast on the Court to impound the said document and collect stamp duty and levy of ten times penalty the duty payable. Once the document is brought on record, Court cannot ignore the rigour of Sections 33 and 34 of the Stamp Act or in other words, Court cannot refrain from collecting stamp duty and penalty on account of same having not been introduced in evidence. Even this exercise has also not been undertaken by the trial court. However, it has opined that plaintiff was not willing to make use of the said instrument as evidence in his favour and neither of the parties to suit being party to it has held question of impounding does not arise. The consent or otherwise of a party producing the document to impound and collect duty and penalty would not be the factor which is required to be taken into consideration while determining stamp duty. Once the instrument is introduced in a judicial proceedings, Court is bound to enquire into with regard to sufficiency or otherwise of the stamp duty payable on the said instrument and if it is found that said instrument is insufficiently stamped, then necessarily duty and penalty has to be collected is one aspect. Regarding admissibility or otherwise in evidence for want of registration would be another aspect and each cannot be clubbed with one another.
6. In the instant case, undisputedly, sale agreement dated 27.06.2011 has been placed by the plaintiffs on record and as such, trial court was required to consider as to whether it is insufficiently stamped or otherwise and proceed to pass orders thereon and said exercise has not been undertaken by trial court.
7. Suit in question is filed for ejectment of defendants from suit schedule property and it requires to be expeditiously disposed of and as such, if a direction is issued to the trial court to dispose of the suit within a time frame, it would suffice and meet the ends of justice.
For the reasons aforesaid stated, I proceed to pass the following:
ORDER i) Writ Petition is hereby allowed.
ii) Order dated 07.02.2017 passed in O.S.No.2047/2015, Annexure-A, is hereby set aside and it is made clear that trial court would be at liberty to examine sufficiency or otherwise of the document dated 02.02.2012 marked as Ex.P15 and record its findings thereon.
iii) Further trial court shall also examine as to sufficiency or otherwise of the stamp duty paid or payable on the sale agreement dated 27.06.2011.
iv) It is made clear that no opinion is expressed on merits of the contention with regard to these two documents. It is kept open to be urged by the learned Advocates before the trial court and it shall simultaneously dispose of the suit expeditiously at any rate within six months from the date of receipt of a copy of this order.
v) Both parties shall co-operate with the trial court.
In view of the writ petition having been disposed of on merits. I.A.1/2017 does not survive for consideration as it is hereby dismissed.
SD/- JUDGE Mkm/Psg*