Point of law:
at best the document could be impounded with directions of payment of penalty as provided under Section 39 or the duty as provided under Section 41 of the Rajasthan Stamps Act, 1998.

ORDER :

Inderjeet Singh, J.

1. This writ petition has been filed by the petitioner challenging the order dated 12.02.2019 whereby the application submitted by the defendant for not allowing the petitioner-plaintiff to mark exhibit on the documents i.e. agreement to sell submitted by the plaintiff-petitioner, was allowed and also against the order dated 13.03.2019 whereby the agreement to sell was ordered to be kept in D part of the file while allowing the application submitted by the defendant.

2. Brief facts of the case are that the petitioner-plaintiff filed a suit for specific performance of the contract and during pendency of the suit, he submitted the agreement to sell before the learned trial Court and the respondent-defendant raised objection that since the agreement to sell is not duly stamped, the same cannot be marked as exhibit and the same be kept in D part of the file. Both the applications were allowed by the trial Court vide orders dated 12.02.2019 and 13.03.2019. Hence, the present writ petition has been filed by the petitioner-plaintiff against the order dated 12.02.2019 and 13.03.2019.

3. Counsel for the petitioner submitted that the court was duty bound to send the document to the Collector Stamps for the purpose of stamp duty.

4. In support of his contention, counsel relied upon the judgment passed by the Coordinate Bench of this Court in the matter of Batti Lal Vs. Manmohan & Ors. passed in S.B. Civil Writ Petition No. 8508/2008 wherein it has been held as under:-

"1. By way of this writ petition, the petitioner assails the order dated 05/08/2008 passed by the learned trial court whereby the document Exhibit-1 produced during evidence has been rejected with direction to remove from the list of exhibits, holding the same to be inadmissible in evidence.

2. Learned counsel appearing for the plaintiff-petitioner submits that an agreement was executed on 20/03/2004 between the plaintiff-petitioner and the defendants-respondents for sale of land of Khasra No. 3424 and 4888 for a sum of Rs. 85,000/- on a stamp paper of Rs. 100/- and the same was duly attested. It was agreed that the sale deed would be registered within an year and with the condition that in case the sale deed is not exhibited and registered, the defendants-respondents shall pay to the plaintiff petitioner a sum of Rs. 1,70,000/-. An amount of Rs. 60,000/- was paid and the remaining amount of Rs. 25,000/- was to be paid by 26/03/2004. The land was however not sold to defendants respondents No. 3 & 4 and thus, the plaintiff-petitioner filed a suit seeking decree of specific performance of contract and for declaring the sale deed dated 16/09/2004 as void and further to restrain the defendants-respondents from disturbing peaceful possession of the plaintiff-petitioner on the land which was handed over to him. It was further prayed for granting a decree of specific performance of contract.

3. By the order impugned, the learned trial court held that the document dated 20/03/2004 was, in-fact, a sale and was written on a deficit stamp duty of Rs. 1,01,750/- and therefore, could not be read in evidence as Exhibit-1.

4. Learned counsel for the plaintiff-petitioner submits that the learned trial court has fallen in error in holding the document to be inadmissible in evidence. As per proviso to Section 49 of the Registration Act, 1908, any unregistered sale deed was admissible in evidence in a suit for specific performance of contract. Learned counsel further submits that in terms of Section 35 and 36 of the Indian Stamps Act, 1899, the Stamps Act is fiscal measure. He relied on the law laid down by the Supreme Court in S. Kaladevi Vs. R. Somasundaram and Ors., AIR 2010 (SC) 1654 and Indralal & Anr. Vs. Saligram & Anr., (2011) 2 RLW (J) 1007 to submit that at best the document could be impounded with directions of payment of penalty as provided under Section 39 or the duty as provided under Section 41 of the Rajasthan Stamps Act, 1998.

5. Per-contra, learned counsel