1. This writ petition is directed against order dated 18.10.13 passed by the Additional District Judge No.2, Bhilwara in Civil Suit No.39/11, whereby an application preferred by the petitioners-defendants under Order XXXXVII Rule 1 CPC seeking review of order dated 18.9.12 rejecting the objection of the petitioners regarding admissibility in evidence of a document i.e. an agreement to sell dated 4.7.09, stands dismissed.

2. The relevant facts are that the respondent-plaintiff preferred a suit for recovery of a sum of Rs.2,70,000/-with the averments that he had purchased the khatedari land of the petitioners-defendants comprising khasra no.580 ad measuring 3 bighas 2 biswas situated in village-Purohito Ka Khera, Patwar Halka Uma Ji Ka Khera, Tehsil-Bijoliya, District-Bhilwara vide agreement to sell dated 4.7.09. It is averred that a sum of Rs.1 lac was paid to the petitioners-defendants at the time of execution of the agreement to sell on 4.7.09 and thereafter, a sum of Rs.1,05,000/-was paid on 28.9.09, towards the consideration for sale. Since the petitioners herein failed to execute the sale deed, the respondent-plaintiff preferred the suit for recovery of an amount of Rs.2,05,000/-alongwith interest quantified at Rs.65,400/-. The suit is being contested by the petitioners by filing a written statement thereto.

3. During the pendency of the suit, the petitioners raised an objection that the document i.e. agreement to sell dated 4.7.09 is not admissible in evidence for want of sufficiency of stamp. The objection raised stood rejected by the court below vide order dated 18.9.12 observing that the suit has been filed by the respondent-plaintiff only for the recovery of the money advanced towards the consideration of sale and therefore, the document cannot be held to be inadmissible in evidence so far as it relates to the acknowledgment of the payment made.

4. The petitioners-defendants preferred a petition seeking review of the order dated 18.9.12 relying upon a decision of the Hon'ble Supreme Court in the matter of 'Avinash Kumar Chauhan vs. Vijay Krishna Mishra', 2009 DNJ SC 364. The review application stands dismissed by the court below observing that the provision incorporated in Article 5 (bb) of the Schedule attached to Rajasthan Stamp Act, 1998 ( for short “the Act”) are attracted only when the suit for specific performance of the contract is filed on the basis of the agreement to sell. The court observed that for the purpose of the suit filed, the agreement to sell falls within the purview of Article 5(c) of the Schedule attached to the Act and therefore, the stamp duty of Rs.100/-paid is sufficient.

5. Learned counsel for the petitioners contended that admittedly by way of agreement to sell, the part payment of consideration was made and possession of the property was handed over and therefore, the instrument was chargeable with the duty as conveyance, in terms of provisions of Article 21 of the Schedule attached to the Act. Learned counsel submitted that the provisions of Article 5(bb) and 5(c) of the Schedule are not attracted in the matter. Learned counsel submitted that for determining the admissibility of the document, the nature of the suit is not at all relevant and therefore, the document which was required to be sufficiently stamped, cannot be permitted to be admitted in evidence. In this regard, learned counsel has relied upon the decision of the Hon'ble Apex Court in the matter of Avinash Kumar Chouhan's case (supra). Learned counsel submitted that document unsufficiently stamped has to be impounded and referred by the court to the Collector (Stamp) for determination of proper stamp duty and the penalty payable.

6. On the other hand, the counsel appearing for the respondent-plaintiff reiterating the stand taken before the court below, submitted that the suit preferred by the respondent-plaintiff is