1. The rejection of plaintiff’s I.A.No.6 under Order 13 Rule 4 CPC to consider the admissibility of the document dated 9/7/2002 marked as Ex.D1 by order dt. 25/10/2010 in O.S.No.83/06 of the Senior Civil Judge & JMFC, Madhugiri, is called in question in this petition.

2. Petitioner instituted O.S.No.83/06 arraigning the respondent herein as the defendant to recover possession and for arrears of rent of Rs.45,000/- as also enquiry into mesne profits from the date of suit till the date of delivery of possession. The defendant, on notice, entered appearance, resisted the suit by filing written statement. In the premise of pleadings of parties, the trial Court framed issues and the parties entered trial. After the closure of plaintiff’s evidence, the defendant entered upon his evidence, whence on 28/1/2000 introduced 8 documents marked unopposed, as Ex.D1 to D8, as neither the petitioner nor her counsel were present before court. The petitioner on 27/11/2010 filed I.A. No.6 under Order 13 Rule 4 CPC to re-consider the admissibility of the document dt.9/7/2002 marked as Ex.D1 on the premise that it was insufficiently stamped and ought to be impounded and direction be issued to the defendant to pay deficit stamp duty and penalty. According to the petitioner, the document being an unregistered mortgage deed allegedly executed by the vendors in title of the petitioner in favour of the respondent/defendant, covenanted that possession of the immovable property was delivered to the defendant as a mortgagee in possession, engrossed on stamp paper value Rs.100. It was the specific case of the petitioner that the document being an unregistered mortgage deed attracted the incidence of stamp duty under Art.34(a) of the Karnataka Stamp Act, 1957, for short `Act’.

3. That application was opposed by filing statement of objections of the respondent/ defendant interalia contending that Order 13 Rule 4 is inapplicable and the absence of the counsel at the time of marking of the documents is not a ground to consider the admissibility of the document. The court below having framed a point for consideration, observed that Ex.D1, the mortgage deed, when marked in evidence unopposed on 28/1/2010, the question of admissibility of the documents on the premise that it was insufficiently stamped, at a later stage of the proceedings, is impermissible, following the decision of this court reported in ILR 2007 KAR 2786 and accordingly by the order impugned, rejected the application.

4. Although learned Counsel for the petitioner contends that Section 33 to 37 of the `Act’ casts a duty on the court to examine the document over sufficiency of stamp duty, before its admission in evidence, I am not impressed by that submission. I say so because, the Apex Court in KASHINATHSA YAMOSA KABADI, ETC. VS. NARSINGSA BHASKARSA KABADI, ETC. reported in AIR 1961 SC 1077 at paragraph 23 observed thus:

“x x x

The documents were admitted in evidence by the trial Court and no question of admissibility of those documents can be resisted at a later stage of the suit or in appeal (see Sec.37, Stamp Act)”.

A learned single Judge of this court in N. S. LAKSHMAIAH SETTY VS. R. GOVINDAPPA reported in 1964 (2) MYSORE L.J. 145, while considering the scope of Secs. 33 to 37 of the Karnataka Stamp Act, having regard to a line of reported opinions of this court and that of the Apex Court, observed thus:

“It is also clear from the decisions already cited above, that where the court fails to take action under Sec.34 and admits a document in evidence, Sec.35 comes into operation subject only to the exception provided in Sec.58. The result is that so far as the parties themselves are concerned, the action of the court admitting the documents in evidence is final and cannot be called in question at any subsequent stage of the suit or in any appeal or revision arising there from, and that so far as the interests of revenue are concerned, they are sought to be protected under Sec.58 u