ORDER :

1. Petitioners being the defendants in declaration suit filed by the respondent/plaintiff in O.S. No. 16596/2006 are invoking the writ jurisdiction of this Court for assailing the order dated 09.08.2017, a copy whereof is at Annexure-A whereby, their application in I.A.No.7 filed under Section 34 of the Karnataka Stamp Act, 1957 having been dismissed the subject document is left un impounded.

2. After service of notice, respondent has entered appearance through his counsel and resist the writ petition.

3. Having heard the learned counsel for the parties and having perused the petition papers and also having adverted to the decision cited at the Bar, this Court grants indulgence in the matter because:

(a) The subject document having been found unduly stamped, petitioners application in I.A.No.6 was allowed on 23.05.2012; however, petitioners application in I.A.No.7 having come before this Court having twice in challenge earlier was remanded for consideration afresh vide orders dated 18.09.2012 in W.P.Nos.27417-27418/2012 (Annexure-K) and in W.P. Nos. 11896/2013 c/w 13770/2013 disposed off on 06.12.2016 (Annexure-L); there being no challenge to the order dated 23.05.2012 made on application in I.A.No.6, the same has attained finality; it is a settled legal position vide decision of the Apex Court in the case of Saharanpur Light Railway Co. vs. Workers Union, AIR 1969 SC 513 that orders made in successive stages of the same litigation operate as res judicata; this aspect having not been adverted to by the Court below, there is an error apparent on the face of the record.

(b) the impugned order proceeds on a wrong legal premise that once a document is marked in evidence, the Court cannot re-open the issue as to its dutiability; which constitutes other error of law a co-ordinate bench of this Court in the case of R. Mahesh and Another vs. Sri. B.P. Venugopal, ILR 2018 Kar. 3029 at Para 14 has observed as under:

"14. It is the admitted case of the parties that no objections were raised when the documents were admitted in evidence by the Court below. It is also fairly admitted that no finding has been rendered by the Court below with regard to the fact, as to whether the documents, Exs.P12 and 13, require to be stamped and if so, whether they are adequately stamped or not. In short there has been no judicial determination of the fact as to whether the Exhibits require to be stamped or not. A mere marking of the document would not suffice to escape from the rigor of the Act. It is obvious that there has been no judicial application of mind before admitting the document. The marking of a document is a ministerial act and on the contrary, the admission of a document is a judicial act. Admittedly, no objections have been raised at the time of marking the document. That by itself will not absolve the Court of its responsibility to examine the admissibility aspect of the same or the power to secure the interest of State Exchequer by calling for and impounding the document for the limited purpose of calculating and collecting the stamp duty. This view of the Court is further fortified by the scheme of the Act as set out in Section 36, 41 and 42 of the Act."

(c) the contention of the learned counsel for the respondent that suit is filed because of non interference of the police and in such a suit, the petitioner being wayfarer cannot raise the issue as to dutiability of the instrument is difficult to countenance without manhandling the provisions enacted in Chapter 4 of the Karnataka Stamp Act, 1957 as interpreted by this Court and the Apex Court in a catena of decisions.

4. In the above circumstances, these writ petitions succeeds; the impugned order is set at naught; petitioners application in I.A.No.7 having been favoured, the subject document is liable to be and accordingly is directed to be impounded; however, it is open for the respondent to pay deficit duty and penalty, if he wants the said document to be part of the record which aspe