Aravind Kumar, J.

1. Heard Sri L. Harish Kumar, learned counsel appearing for petitioners. Perused the records.

2. I.A. No. 10 came to be filed by writ petitioners, who are plaintiffs in O.S. No. 1929/2006 by invoking Sections 33 and 58 of the Karnataka Stamps Act, 1957 (hereinafter referred to as 'the Act' for short), read with Section 151 CPC for impounding sale agreement dated 01.06.1995 marked as Ex. D-2 produced by defendants on the ground of said document being insufficiently stamped. Said contention came to be adjudicated by trial Court after considering the objections filed to the said application by contesting defendants and on such adjudication, application came to be dismissed on the ground that said document was confronted by the counsel appearing on behalf of second defendant to P.W. 1 on 08.06.2012 and without there being any objection to marking of the said document it came to be marked and as such, Section 35 of the Act bars such contention being raised.

3. It is the contention of Sri L. Harish Kumar, learned counsel appearing for petitioners that a party objecting to document being insufficiently stamped would be entitled to raise such defence even after such document is marked and Section 35 of the Karnataka Stamp Act, 1957 does not place an absolute embargo. In support of his submission he has relied upon the judgment of this Court in the case of THE SECRETARY, FLAT OWNERS ASSOCIATION, RANKA PLAZA APARTMENTS, BANGALORE vs. SMT. THAMBOOCHETTY AND OTHERS reported in 2015 (3) KCCR 2047.

4. Having heard the learned counsel appearing for petitioners, certain facts are required to be noticed and they read as under:

Plaintiffs herein have filed a suit for declaring that sale deed dated 04.08.2003 executed by first defendant in favour of second defendant as void and not binding on plaintiffs and it is vitiated by fraud and consequential relief of perpetual injunction.

5. On service of suit summons second defendant filed written statement by denying the averments made in the plaint and specifically contending that plaintiff and his sons had executed an agreement of sale dated 01.06.1995 in favour of first defendant agreeing to sell the suit schedule property for a total consideration of Rs. 3,00,000/- and had received a sum of Rs. 50,000/- advance and thereafter, had received balance sale consideration of Rs. 2,50,000/-. It was also contended that plaintiffs had executed General Power of Attorney in favour of first defendant and he had in-turn executed the sale deed in favour of second defendant, which was now sought to be declared as null and void by plaintiffs.

6. On the basis of pleadings issues have been framed and parties have gone for trial. Third plaintiff had entered the witness box on behalf of plaintiff as P.W. 1. His deposition was recorded and on 08.06.2012 after completion of his further examination-in-chief he was cross-examined by second defendant's counsel and was confronted with the agreement of sale dated 01.06.1995 referred to herein supra and execution of said agreement came to be admitted by P.W. 1. As such, said document came to be marked as Ex. D-2. There was no resistance to the marking of said document. Deposition and order sheet does not indicate about any objection having been raised for marking of said document by the counsel appearing for plaintiffs. In this background, presumption that would arise is that there was no objection to the marking of said document and even otherwise, duty is cast upon the learned trial Judge to ascertain its admissibility in evidence and this also seems to have been considered by the trial Court. Raising of objection by either of the party or not, does not absolve the responsibility of Court to examine the admissibility of document in evidence. Section 33 of the Act casts a duty on the Court to examine the document when tendered in evidence to find out as to whether it is duly stamped or not, irrespective of fact whether objection to its marking is raised or