ORDER :

The question of law that arises for consideration of this court in these two similar cases relates to invocability of the provisions of Chapter IV of the Karnataka Stamp Act, 1957, for impounding of unduly or unstamped instruments even after they are marked & admitted to evidence; the subject documents have been admitted to evidence sans objection when they were so admitted, is not in dispute.

2. After service of notice, the respondents having entered appearance through their counsel, resist the writ petitions making submission in justification of the impugned orders and the reasons on which they are predicated.

3. Both the sides have banked upon the following decisions in support of their version & counter version:

(i) M/s Cave Caterers Private Limited vs. M/s Sudha Enterprises, ILR 2011 KAR 2017.

(ii) W.P.No.27694/2012 dated 20.03.2014 Smt. Huchamma and others Vs. Sri. Chandrashekar.

(iii) W.P.Nos.49640-49651 of 2017 (GM-CPC) between S. Byregowda and others Vs. Saramma Joseph Thannickal.

(iv) W.P.No.49424 of 2017 (GM-CPC) between R Mahesh and Others Vs. B.P. Venugopal.

(v) C.R.P.No.505 of 2018 between P.N. Babu Vs. K.S. Ananth and Others.

(vi) Digambar Warty and Others Vs. District Registrar, Bangalore Urban District and Another, ILR 2013 KAR 2099.

4. I have heard the learned counsel for the parties and perused the petition papers. There appear to be decisions on both the sides of the spectrum; most of these decisions are rendered by learned single Judges of this court and apparently they are fact-specific; however, some light is thrown by the Division Bench of this court in Digambar Warty & others Vs. District Registrar, Bangalore Urban District, ILR 2013 KAR 2099; the observations at para 36 are as under :

“36. This provision refers to the power of the Civil Court which admits the documents in evidence. The main Section is couched in the negative. Unless the instrument is duly stamped, it is inadmissible in evidence. As an exception, the proviso provides for payment of duty and penalty. In the matter of collection of duty and penalty no discretion is vested with the authority admitting such an instrument in evidence. The duty payable on the instrument is prescribed by statute. Therefore, there is no question of any discretion being vested with the authority impounding the document in the matter of collecting the duty. Once the duty payable is ascertained from the statute, no discretion is vested with the authority admitting the document in evidence, in the matter of imposition of duty and penalty. The word used in the said proviso is ‘shall’. It is mandatory. However, Section 35 makes it clear, that where an instrument has been admitted in evidence without there being objection at the time of admitting the said instrument in evidence, then 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 has not been duly stamped. Section 58 deals with the power of the Appellate Court to review the finding recorded by the original Court under Section 34 of the Act, either suo motu or on the application of the Deputy Commissioner. Section 36 of the Act deals with admission of improperly stamped instrument. The State Government may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date of its execution.”

5. What emerges from the above observations is that once an instrument as defined u/s 2(e) of the 1957 Act is admitted in evidence & marked, as contradistinguished from marking per se, sans objection thereto, the issue as to inadmissibility of the said instrument on the ground of absence or insufficiency of stamp duty on such instruments cannot be raised in the self same proceedings; presum