IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.28826 OF 2014 (GM CPC) BETWEEN:
Smt.Vinodini V Murthy Aged about 51 years W/o C.T.Venkatesh Murthy Residing at No.631, 12th Cross, 2nd Phase, Girinagar, Bangalore-560 085.
(By Sri.Chandranath Ariga, Advocate) AND:
1. Smt.Leelavathi Aged about 70 years W/o Late Srinivas Urs, C/o H.S.Muralidhar Urs 60 feet Adichunchanagiri Road, 2nd Stage, Vinobha Nagar, Shimoga-577 415 2. Sri.Chandrashekar Hatwar Aged about 68 years S/o Late Krishna Rao N.H.17, Opposite Kamath Motors, Hanglur Village, Kundapur Taluk 3. Smt.Sarojini M Holla, Aged about 66 years W/o Late Mahabaleshwara Holla, No.9, 9th Ward, N.H.17, ….Petitioner Voderholi Village, Kundapur Taluk 4. Smt.Jayalaxmi, Aged about 64 years, W/o H.S.Srinivas, Sri.Krishna Nilaya, Railway Station Road, Gandhinagar, Tumkur-572 102.
5. Smt.Anuradha, Aged about 51 years, W/o late Keshava Hatwar, 6. Sri.Nitin Hatwar, Aged about 31 years, S/o late Keshava Hatwar 7. Kum.Nikhila, Aged about 26 years, D/o late Keshava Hatwar, No.5 to 7 are residing at Kodi Road, Hanglur village, Kundapur Taluk-576 201.
8. Smt.Jyothi, Aged about 59 years, W/o Ramesh Hatwar, Venkateshwara Nilaya, Behind Nataraj Talkies, No.286, Ward No.16, Bellary-583 126.
9. Smt.Arundhathi, Aged about 56 years, W/o Kishor Acharya, Scheme No.40, Plot No.137, Human Nagar, Belgaum-591 201.
10. Smt.Revathi, Aged about 54 years, W/o Late Dr.Rajendra Hatwar, Department of Metrology, Behind Simla Office, Pune-Maharastra-570035.
…Respondents (By Sri.Vigneshwara S Shastri, Advocate for R2, R5-R7 R1, R3, R4, R8 served & unrepresented) (Respondent Nos.9 and 10 are deleted as per order dated 20.01.2017) This Writ petition is filed under Articles 226 and 227 of Constitution of India, praying to set aside for order dated 16.01.2014 in OS.No.180/2008 on the file of Civil Judge (Jr.Dn) Kundapura (Annx-D) and etc., This petition coming on for Preliminary hearing in ‘B’ Group, this day, the Court made the following:
ORDER Petitioner is the plaintiff in OS.No.180/2008 which is filed for partition and separate possession of suit schedule properties. Respondents are defendants in the said suit and they have appeared on service of summons and contested the matter. During the course of trial, an agreement dated 14.11.2001 was tendered on behalf of the second defendant in his evidence, which was objected to by the plaintiff on the ground that said deed was insufficiently stamped and not registered, though it is compulsorily registrable document.
2. By impugned order dated 16.01.2014, learned trial Judge has directed the Registry to collect the deficit stamp duty and penalty from the defendants payable on the said agreement dated 14.11.2001. Learned counsel appearing on behalf of the petitioner submits petitioner would have no objection or grievance to the extent of collection of duty and penalty. However, it is his contention that on account of said document having been objected to be tendered in evidence for being marked and as such, the said issue is at large and he prays for such contention being permitted to be raised during the course of final arguments before the trial Court.
3. Per contra, Sri.Vigneshwara S.Shastry, learned counsel appearing for respondents would vehemently contend that once document is marked in evidence, plaintiff cannot raise objection with regard to its admissibility at a later stage and hence, he submits no such liberty should be granted to the plaintiff to raise said contention at the time of addressing final arguments.
4. During the course of evidence of DW2, above referred document came to be tendered and marked. It is trite law that marking of the document is an Administrative act, admissibility of the document is an issue which will have to be considered by the learned trial Judge at the time of examining the rival contentions.
5. In that view of the matter, this Court is of considered view that question of setting aside the impugned order would not arise in as much as impugned order has got spent itself namely and defendants have already paid the duty and penalty which was ordered by the learned trial Jude under the impugned order.
6. In that view of the matter, it would suffice if liberty is granted to both the parties to urge all contentions with regard to the admissibility of said document/deed dated 14.11.2001 before the trial Judge at the time of canvassing final arguments and it is needless to state that the trial Court would consider the same and proceed to adjudicate the same in accordance with law and on merits.
With these observations, this writ petition stands disposed of.
SD/- JUDGE SB