A.N. Venugopala Gowda, J.

Petitioner is the plaintiff in O.S.123/ 2004 pending on the file of Civil Judge (Sr. Divn.), Challakere, filed against the respondent, to pass a judgment and decree directing the defendant to redeem the mortgage property by paying loan amount of Rs. 77,800/- with future interest, failing which, to sell the suit schedule property in public auction for realising the amount. Respondent has contested the suit. Based on the pleadings, trial Court has framed issues on 28.6.2005. During the course of trial of the suit question arose, as to whether the mortgage deed produced by plaintiff should be received in evidence. Since it was noticed that, the deed was an unregistered deed. After hearing learned Counsel on both sides about admissibility of the mortgage deed in evidence, trial Court has held that deed is inadmissible in evidence. Questioning the said order, this writ petition has been filed.

2. Sri B.M. Siddappa, learned Counsel appearing for the petitioner had on 17.10.2005, submitted before this Court, that the petitioner proposes to confine his relief in the plaint, only for recovery of money and not for redemption of mortgage. On 24.10.2005, after receiving the memo filed restricting the prayer only for recovery of money and not for redemption of mortgage, emergent notice of the writ petition was ordered to be issued to the respondent.

3. I heard Sri B.M. Siddappa, learned Counsel appearing for petitioner and Sri C. Shivakumar, learned Counsel appearing for respondent and perused the record of writ petition.

4. Sri B.M. Siddappa, learned Counsel for petitioner, after inviting my attention to the orders passed on 17.10.2007 and 24.10.2007, restricting the relief for recovery of money, contended that the trial Court has committed jurisdictional error and illegality in passing the impugned order. He contended that, since the relief now is only for recovery of money, marking of the document in question, would be only for ‘collateral purpose and hence is permissible. He contended that, since the document in question is required to be looked into only for the collateral purpose, payment of stamp duty and penalty or its non-registration, does not arise and are not of material consequence. He cited the following decisions.

1. (Dronamraju) Rama Rao and Others Vs. Kessapragada Vedayya and Others reported in 1923 Madras 447

2. Kanju and Moolji Brothers Vs. T. Shunmugam Pillai reported AIR 1932 Madras 734

3. Harendra Nath Chaudhury Vs. Dwijenda Nath Banerji and Others reported in AIR 1933 Calcutta 786.

5. Sri C. Shivakumar, learned Counsel appearing for respondent, by inviting my attention to the averments made in the plaint, issues framed in the suit, copy of the document in question dated 30.10.1988 and the impugned order passed by the trial Court, contended that the suit is entirely based on deed of mortgage, which has not been drawn on the stipulated stamp paper; it is also not a registered document and hence the trial Court is justified in holding the deed is inadmissible in evidence.

6. Considering the rival contentions and the writ petition, the point that arises for my consideration is:

Whether the trial Court has committed any jurisdictional error and illegality, in holding the mortgage deed dated 30.10.1988, as inadmissible in evidence?

7. A perusal of the averments made in the plaint shows that, plaintiff and and defendant are brother and sister; defendant .is the owner of property shown in the schedule thereof; defendant has mortgaged suit schedule property for borrowing loan of Rs.39,000/- and has executed mortgage deed in the presence of witnesses on 30.10.1988 and as such plaintiff is the mortgagee and defendant is the mortgagor. It has been specifically averred in the plaint that, the defendant has handed over the title deed and also possession in his favour on the date of execution of mortgage deed. It has been further averred that as per the mortgage deed, the relief noticed supra, has b