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High Court of Karnataka
THE HONOURABLE MR. JUSTICE SUBHASH B.ADI
Shri.S.Suresh
Versus
Shri.L.Pothe Gowda & Others
Writ Petition No.18505 of 2007 (GM-CPC)
Date of Judgment : 12-04-2010
It is duty of Court to verity document sought to be admitted in evidence and if it is not duly stamped or insufficiently stamped, it shall call upon party producing same to pay the duty and penalty. It same is paid, Court may proceed to mark said document in evidence. If duty is not paid, Court may impound original document and send same to Registrar for further action. Party objecting to making must raise his objection at time of marking, if document admitted without objection, party cannot raise its objection as to admissibility of document in evidence except under Section 58 of Act.
KARNATAKA STAMP ACT, 1957 - Sections 33 & 34 & C.P.C., Order 13, Rule 1: [Subhash B. Adi, J] Impounding of document - Held, The purpose of Sections 33 and 34 of Act is not to admit any document in evidence, if it is not duly or insufficiently stamped. It is in this context, impounding of document has to be considered, as once the document is marked, it becomes an evidence. Under Rule 82 of the Civil Rules of Practice, once document is marked, it becomes an evidence. It is also further clear from provisions of Section 35 of Act wherein raisin of objection as regard to admissibility after document is admitted, is impermissible. Hence, from procedure contemplated under Order 7, Rule 14, Order 13, Rules 1,4,6 and 8, Order 16, Rule 1 and Order 18, Rule 4 makes it abundantly clear that admissibility or in admissibility of document or its rejection or impound arises only when it is tendered in evidence. In light of procedure prescribed under Code of Civil Procedure read with Sections 33,34, and 35 of Act, impounding of document has to be considered only when it is produced in evidence and not otherwise.
These provisions make it abundantly clear that, documents though are filed in suit, but they are not sought to be admitted in evidence, in such cases, the party cannot be compelled to pay duty for production f document with out using them in evidence. However, if documents are used as evidence to prove issue involved, party cannot be allowed to use evidence without paying stamp duty and penalty. From provisions of code of Civil Procedure, stage of rejection of document arises, if document is in admissible in evidence, or is irrelevant or its admissibility is objected by Court or party, Court can reject document as in admissible or impound for non-compliance with provisions of Act or any other law.
(This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the Article 5(e)(1) of Karnataka Stamp Act was unconstitutional and quash Annexure-A, the order passed on 17.3.2007 in O.S.No.1323/2007 on I.A.V. filed under Section 34 of the Karnataka Stamp Act by the City Civil Judge, Bangalore. (CCH-19) and dismiss I.A.No.V in O.S.No.1323/2007 on the file of City Civil Judge, Bangalore, (CCH-19) and etc.)
This Writ Petition is directed against the order dated 17.3.2007 in O.S.No.1323/2007 on
I.A.V filed under Section 34 of the Karnataka Stamp Act, 1957 (hereinafter referred to as ‘the Act’).
2. Petitioner is the plaintiff in the trial court. He has sought for permanent injunction, restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property. In the said suit, plaintiff produced documents along with the plaint, further he also filed an application under Order XXXIX Rule 1 and 2 of CPC interalia for grant of temporary injunction, restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property. As against the application for grant of temporary injunction, defendants filed I.As.5 and 6 under Section 34 of the Act read with Section 11 of the Karnataka Court Fees and Suit Valuation Act interalia alleging that, the document produced along with the plaint is a conveyance as defined under the provisions of Section 2 clause (d) of the Act and is an instrument chargeable under Section 3 of the Act, unless the stamp duty and penalty is paid as required under the provisions of Section 34 of the Act. It is also alleged that, the documents are required to be impounded.
3. The trial court relying on Article 5 clause (e) and section 33 of the Act allowed I.A.V by holding that, the Memorandum of Understanding dated 20th November 2005 and possession letter of the same date are required to be impounded, for want of stamp duty and penalty. It is against this order, the plaintiff has filed this writ petition.
4. Petitioner though has sought for declaration that Article 5 clause (e) sub-clause (i) of schedule to the Act as unconstitutional, however, during the course of hearing, he confined the relief insofar as the impugned order is concerned.
5. Sri.Dwarakanath, learned Counsel appearing for the petitioner submitted that, I.A.V filed for impounding of the document is not maintainable in view of the provisions of Section 34 of the Act and submitted that, the document is produced along with the plaint and is not tendered in the evidence nor it is sought to be marked in the evidence. Unless the document is sought to be admitted in the evidence, question of impounding under Section 33 of the Act does not arise.
6. He relied on the judgment of this Court reported in 1969(2) Mys.L.J. 299 in the matter of LAKSHMINARAYANACHAR –vs- NARAYAN AND ANOTHER and submitted that, in identical circumstances, this Court on interpretation of the provisions of Section 34 has held that, the impounding of document for non-payment of deficit stamp duty arises only when the document is tendered is tendered in the evidence. He further relied on another judgment of this court reported in 1994 Vol.4 Kar.L.J.573 in the matter of LEELAMMA SAMUEL – vs- T.M.FRANCIS and submitted that, only when the document comes before the court for the purpose of being used in evidence, the court is required to determine the question as to whether the document sought to be produced in the evidence is chargeable, if chargeable, whether sufficient stamp duty is paid, if not and determine the stamp duty, call upon the party producing such document to deposit the duty and penalty. If the party fails to deposit the said amount, the court gets the jurisdiction to impound the document.
7. This Court on interpretation of the provisions of Sections 33 and 34 of the Act in a judgment reported in 2000 (4) Kar.L.J.55 in the matter of K.AMARNATH –vs-SMT.PUTTAMMA
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