1. Defendant No.2 in O.S.No.10198/1998 on the file of the XXVIII Addl. City Civil Judge, Mayo Hall, Bengaluru, aggrieved by the order dated 16.11.2012 rejecting the application under Sections 33 and 34 of the Karnataka Stamp Act, 1957, for short ‘Act’ has presented this petition.

2. Respondents jointly instituted O.S.No.10198/1998 for recovery of vacant possession of ‘A’ and ‘B’ suit schedule properties, arraigning the lessee, as 1st inducted by 1st defendant and those defendant as tenants of portions of the suit schedule properties, as defendants 2 to 85, asserting that plaintiffs jointly executed a rental agreement in favour of 1st defendant extending lease of the vacant land for 99 years on payment of ground rent and permitting erection of commercial complex and induct tenants and on expiry of the term of lease, possession be handed over to the plaintiffs. On the allegation that the 1st defendant committed breach of the terms of the rental agreement, the suit instituted.

3. Petitioner arraigned as 2nd defendant filed written statement opposing the suit, advancing amongst others, the plea that the suit was not properly valued for purpose of Court fee. An issue when not framed over proper court fee, led to filing a writ petition, whence, certain directions were issued, whereafterwards, issue No.10 was framed in that regard, casting burden on 2nd defendant. The Trial Court having answered the issue in the negative, against 2nd defendant, without recording evidence, was quashed in another writ petition and remitted for consideration, afresh. At that stage, petitioner was examined as D.W.1 over issue No.10 by filing an affidavit in lieu of recording examination in chief. In the cross-examination on 28.01.2011, D.W.1 having answered the question that he had seen the agreements and plan, was shown the two rental agreements of even date 16.10.1983 and when he said that those were the documents seen by him, were marked as Exs.P.1 and 2, without objections.

4. On 14.9.2012 petitioner filed IA invoking Sections 33 and 34 of the ‘Act’, to direct the plaintiff to pay duty and penalty on the two rental agreements of even date 16.10.1983, inter alia, contending that they are insufficiently stamped and though compulsorily registerable were not registered.

5. That application was opposed by filing statement of objections of the plaintiff asserting that the filing of the application at a belated stage was only to protract the proceeding and infact was not maintainable and further that since DW-1 in cross examination admitted the documents when confronted, without objections, were marked as Exs.P1 and P2. In addition, it was stated that Section 35 of the ‘Act’ states that when an instrument is admitted in evidence, such admission shall not except as provided in Section 58 be called in question at any stage of the same suit or proceeding on the ground that the instrument was not duly stamped.

6. The trial Court having regard to the pleadings of the parties and the deposition of DW-1 observed thus: “the contents of the same including its execution was admitted by DW-1 during the cross-examination”, and since neither DW-1 or the learned counsel though present did not raise objection of deficit duty on the said documents, the Court did not have jurisdiction to go into the question of adequacy of stamp duty at a subsequent stage of the suit, in the light of Sections 35 and 36 of the ‘Act’, except, as provided under Section 58. The trial Court followed the observation of the Apex Court in Javer Chand and others –vs- Pukhraj Surana (AIR 1961 SC 1655) that once document is marked as exhibit in the case and the trial has proceeded all along on the footing that the document exhibited has been used by the parties in the examination and cross-examination of their witnesses, Section 36 of the Act comes into operation and it is not open either for the court itself or court of appeal or revision to go behind the order. The trial court though made ref