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High Court Of Delhi
M.MOHAN - Appellant
Versus
MAHESHWARI SETH - Respondent
CIVIL MISCELLANEOUS 3814 of 1986
Decided On : 11/14/1986
STAMP ACT - LEASE DEED - S. 33, 35 - ADMISSIBILITY OF EVIDENCE - LEASE DEED NOT DULY STAMPED - OPPORTUNITY TO PAY DEFICIT DUTY AND PENALTY - COURT'S DUTY TO DETERMINE STAMP DUTY PAYABLE - LEASE FOR ELEVEN MONTHS WITH RENEWAL CLAUSE - STAMP DUTY PAYABLE UNDER ART. 35 (A) (I) READ WITH ART. 15 OF SCH. I OF THE STAMP ACT, 1899.
Fact of the Case:
In an eviction petition under the Delhi Rent Control Act, 1958, the respondent-landlady tendered a lease deed executed on non-judicial stamp paper of Rs. 11- only. The petitioner-tenant objected to its admissibility on the ground of insufficient stamp duty and non-registration. The Additional Rent Controller, without judicially examining the objection, held that the document was not admissible in evidence and passed an order of eviction against the petitioner.
Finding of the Court:
The court held that the Additional Rent Controller erred in not giving the respondent an opportunity to pay the deficit stamp duty and penalty under S. 35 of the Stamp Act, 1899, before holding the lease deed inadmissible in evidence. The court further held that the lease deed was only for a period of eleven months and the renewal clause was ancillary, and therefore, the stamp duty payable was under Art. 35 (a) (i) read with Art. 15 of Sch. I of the Stamp Act, 1899, applicable to Delhi on a lease for eleven months.
Issues: 1. Whether the Additional Rent Controller erred in not giving the respondent an opportunity to pay the deficit stamp duty and penalty under S. 35 of the Stamp Act, 1899, before holding the lease deed inadmissible in evidence? 2. What was the stamp duty payable on the lease deed?
Ratio Decidendi: 1. It is the duty of the trial court to determine the question of admissibility of an unstamped or insufficiently stamped document judicially as soon as it is tendered in evidence and before it is marked as an exhibit. If the court comes to the conclusion that the document is not duly stamped, it must give an opportunity to the party who tenders the document in evidence to pay the deficit stamp duty and penalty under S. 35 of the Stamp Act. 2. A lease deed for a period of eleven months with a renewal clause is not an instrument comprising or relating to several distinct matters within the meaning of S. 5 of the Stamp Act, 1899. The stamp duty payable on such a lease deed is under Art. 35 (a) (i) read with Art. 15 of Sch. I of the Stamp Act, 1899.
Final Decision: The court allowed the respondent-landlady to pay the deficit stamp duty and penalty of Rs. 583.00 under S. 35 of the Stamp Act, 1899. Upon payment of the said amount, the lease deed was deemed to have been admitted in evidence and marked as Ex. AZ.
( 1 ) THIS is an application by the respondent under Ss. 33 and 35 of the Stamp Act requesting to determine if the lease deed dt. 15th Jan. , 1975 between the petitioner and the respondent (Marked C) was not properly stamped, if so, to grant her opportunity to pay the deficit duty and penalty under S. 35 of the Stamp Act.
( 2 ) SMT. Maheshwari Seth, respondent filed a petition for eviction of the petitioner under S. 14 (1 ) (e) of the Delhi Rent Control Act, 1958. She alleged that the petitioner was inducted as a tenant on I5th Jan. 1975 at Rs. 500. 00 per month besides electricity and water charges in a portion of her house at Vasant Vihar, New Delhi in terms of a deed of lease dt. 15th Jan. , 1975 executed between the parties; the premises were let for residential purposes which were required bona fide for the residence of herself and members of her family dependent upon her; she was the owner thereof, and she had no other reasonably suitable residential accommodation. The petitioner in the written statement pleaded that the premises were let for all purposes i. e. residential-cum- commercial, that no purpose of letting was specified in the lease deed, which was inadmissible in evidence. The respondent pleaded that the lease deed was admissible in evidence.
( 3 ) THE respondent appeared as her own witness (A. W. 1) on 8th Aug. , 1984. During her examination the lease deed dt. 15th Jan. , 1975 admittedly signed by the petitioner and the respondent was tendered in evidence. The lease deed was marked as c . It was not exhibited. There is no endorsement on the lease deed within the meaning of O. 13, R. 4 of the Civil P. C. admitting the document in evidence. But from the pleadings of the parties and the fact that this document was marked c it is apparent that there was dispute before the Additional Rent Controller about the admissibility of this document in evidence on ground of non-registration and non-payment of proper stamp duty.
( 4 ) THE Additional Rent Controller after recording evidence passed an order of eviction against the petitioner by judgment dt. 4th July, 1985. He has observed that the lease deed is marked c and has not been exhibited for want of registration and proper stamp duty.
( 5 ) SECTIONS 33 and 35 of the Stamp Act, 1899 read as under :
"33 (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed : Provided that (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chap. XII or Chap. XXXVI of the Criminal Procedure Code, 1898. (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons in charge of public offices".
"35. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person
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