The objection to admissibility of a document on the ground of stamping must be judicially decided when the document is tendered in evidence. Once a document is marked subject to objections, the objection for marking the document is not judicially determined, and therefore, Section 35 of the Karnataka Stamp Act, 1957 does not apply.

ABDUL NAZEER, J, J.

( 1 ) IN this case, petitioner has called in question the order passed by the XV Additional City Civil Judge, Bangalore, in O. S. No. 1056/2000 dated 12. 9. 2006 whereby the court below has directed the petitioner to pay duty and penalty in a sum of Rs. 81,675/- on document - Ex. D 1 within two weeks from the date of the said order.

( 2 ) THE first respondent/plaintiff has filed the aforesaid suit against the petitioner and other respondents seeking their eviction from the suit schedule property and for delivery of vacant possession in his favour. Petitioner and respondent Nos. 2 to 4 are the defendants in the said suit. They have contested the said suit. Plaintiff filed his affidavit of evidence in the said suit on 29. 3. 2004. During his cross-examination by the learned Counsel appearing for the defendants, he was confronted with a lease deed. Learned Counsel for the plaintiff raised an objection for marking of the said document, on the ground, that it is insufficiently stomped and that it requires registration. The court below has observed that separate order will be passed with regard to the said objection and subject to the said order, the document is marked in evidence as Ex. D 1. The relevant portion of the deposition of the plaintiff is as under:

"it is not correct to suggest that, on 28. 10. 1992, 2nd defendant and myself had entered into a lease agreement in respect of suit schedule property. I am not having any document to show the jural relationship of landlord and tenant. Ex. C1 bears my signature at Ex. D-1 (a) to Ex. D-1 (i ). (Advocate for plaintiff raises objection regarding this document and contends that it is insufficiently stamped and also it requires registration. Separate order is passed regarding stamp duty and subject to which it is marked ). "

( 3 ) THEREAFTER, the court below has recorded in the order sheet as under:

"29. 3. 2004 Cross of PW-1 pw 1 examined in full marked Ex. D1 the office to calculate D and P payable if any regarding D1 by regarding 31. 3. 2004. "

( 4 ) ON 31. 3. 2004, office has put up a note regarding duty and penalty payable by the first defendant at Rs. 9,48,090/ -. The matter was heard on the amount of duty and penalty payable by the first defendant. The court below has come to a conclusion that first defendant is liable to pay duty and penalty and quantified the same at rs. 81,675/ -. The court below has not decided the question relating to registration of the document. Therefore, the effect of non-registration of the said document is not considered in this writ petition. The petitioner has not challenged the quantification of the duty and penalty in this writ petition. The only question to be considered in this writ petition is whether the court below is justified in directing the petitioner to pay duty and penalty on Ex. D1 ?

( 5 ) I have heard the learned Counsel for the parties.

( 6 ) LEARNED Counsel for the petitioner submits that the document in question has already been marked in evidence by the court below as Ex. D1 as per under Order 13 Rule 4 of Code of Civil Procedure. He further submits that once the document is admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceedings, on the ground, that the instrument had not been duly stamped. He therefore submits that the court below is not right in passing the impugned order directing the petitioner to pay duty and penalty. Learned Counsel for the petitioner has placed reliance on the following decisions in support of his contentions: (i) JAVER CHAND AND OTHERS vs PUKHRAJ SURANA (ii) KRISHNA vs SANJEEV (iii) SHYAMAL KUMAR ROY vs SUSH1l KUMAR agarwal

( 7 ) ON the other hand, learned Counsel for the respondents submits, that the document was marked subject to objections. Therefore, the court below was justified in directing the petitioner to pay duty and penalty in terms of the impugned order. Learned Counsel for the respondents have placed reliance on the

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