1. Writ petition against order declining to decide admissibility of document as preliminary issue in civil suit. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 )
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2026 Supreme(Raj) 1046
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
FARJAND ALI, J.
Harisingh Rajput, son of Shri Raghunathsingh - Petitioner
Versus
Dr. Chhail Singh, son of Shri Mangilalji Gehlot Mali - Respondent
S.B. Civil Writ Petition No. 10409 of 2017
Decided On : 17-08-2026
Important Points
In specific performance suits, unregistered agreements are admissible under Section 49 of the Registration Act, but insufficiently stamped documents must be cured via statutory payment of deficient duty. Such admissibility issues are mixed questions of law and fact, not triable as preliminary issues under Order XIV Rule 2 CPC.
Subject
Civil Law - Procedural Law / Specific Performance
Act Referred
CONSTITUTION OF INDIA: Art.226, Art.227
CIVIL PROCEDURE CODE: O.14 R.1, O.14 R.2, O.22 R.3, O.22 R.9
REGISTRATION ACT: S.17(1)(a), S.49
RAJASTHAN STAMP ACT: S.39
CIVIL PROCEDURE CODE: O.14 R.1, O.14 R.2, O.22 R.3, O.22 R.9
REGISTRATION ACT: S.17(1)(a), S.49
RAJASTHAN STAMP ACT: S.39
Headnote
(A) Code of Civil Procedure, 1908 - Order XIV Rule 2 - Preliminary Issue - An issue involving mixed questions of fact and law cannot ordinarily be tried as a preliminary issue. Only questions of law that can be decided without recording evidence and relate to the jurisdiction of the Court or a statutory bar to the suit may be tried as a preliminary issue. (Paras 14-15)
(B) Registration Act, 1908 - Section 49 - Proviso - An unregistered document affecting immovable property and required to be registered may be received as evidence of a contract in a suit for specific performance. Mere non-registration does not render such an agreement inadmissible in evidence in a suit for specific performance. (Paras 18-19)
(C) Stamp Act - Section 39 - Insufficiently stamped instruments - An instrument that is insufficiently stamped cannot be received in evidence in its existing form; however, the defect is curable upon payment of the deficient stamp duty and penalty as prescribed by law. Compliance with these fiscal requirements is mandatory before such a document is received in evidence or exhibited. (Paras 20-21)
Facts of the case:
In a suit for specific performance, the defendants contested the admissibility of the agreements relied upon by the plaintiffs, pleading that the documents were neither duly stamped nor registered. The trial court framed an issue regarding this admissibility and, after prolonged proceedings, declined to treat the issue as a preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure, observing that it involved mixed questions of fact and law. The petitioner challenged this order under the supervisory jurisdiction of the High Court.
Findings of Court:
The trial court's refusal to treat the admissibility issue as a preliminary issue is consistent with the scheme of Order XIV Rule 2 of the Code of Civil Procedure. However, the statutory objection regarding the insufficiency of stamp duty cannot remain in procedural limbo. The appropriate course is to follow the statutory procedure for impounding the document and recovering the deficient duty.
Issues: Whether an issue concerning the non-registration and insufficiency of stamp duty of a document in a suit for specific performance can be decided as a preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure.
Ratio Decidendi: While unregistered agreements are admissible in specific performance suits under the proviso to Section 49 of the Registration Act, insufficiently stamped documents must undergo the statutory process of duty and penalty payment before admission. Such issues are mixed questions of law and fact and thus do not qualify as preliminary issues under the Code of Civil Procedure.
Result: Writ petition disposed of with directions to the trial court to send the document to the competent authority for impounding and determination of deficit stamp duty, and to conclude the suit within nine months thereafter.
(B) Registration Act, 1908 - Section 49 - Proviso - An unregistered document affecting immovable property and required to be registered may be received as evidence of a contract in a suit for specific performance. Mere non-registration does not render such an agreement inadmissible in evidence in a suit for specific performance. (Paras 18-19)
(C) Stamp Act - Section 39 - Insufficiently stamped instruments - An instrument that is insufficiently stamped cannot be received in evidence in its existing form; however, the defect is curable upon payment of the deficient stamp duty and penalty as prescribed by law. Compliance with these fiscal requirements is mandatory before such a document is received in evidence or exhibited. (Paras 20-21)
Facts of the case:
In a suit for specific performance, the defendants contested the admissibility of the agreements relied upon by the plaintiffs, pleading that the documents were neither duly stamped nor registered. The trial court framed an issue regarding this admissibility and, after prolonged proceedings, declined to treat the issue as a preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure, observing that it involved mixed questions of fact and law. The petitioner challenged this order under the supervisory jurisdiction of the High Court.
Findings of Court:
The trial court's refusal to treat the admissibility issue as a preliminary issue is consistent with the scheme of Order XIV Rule 2 of the Code of Civil Procedure. However, the statutory objection regarding the insufficiency of stamp duty cannot remain in procedural limbo. The appropriate course is to follow the statutory procedure for impounding the document and recovering the deficient duty.
Issues: Whether an issue concerning the non-registration and insufficiency of stamp duty of a document in a suit for specific performance can be decided as a preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure.
Ratio Decidendi: While unregistered agreements are admissible in specific performance suits under the proviso to Section 49 of the Registration Act, insufficiently stamped documents must undergo the statutory process of duty and penalty payment before admission. Such issues are mixed questions of law and fact and thus do not qualify as preliminary issues under the Code of Civil Procedure.
Result: Writ petition disposed of with directions to the trial court to send the document to the competent authority for impounding and determination of deficit stamp duty, and to conclude the suit within nine months thereafter.
Legal Category Hierarchy
-
practice and procedure
- civil procedure
- evidence
- property law
- taxation
Advocates:
Advocate Appeared:
For the Petitioners: Mr. S.K. Maloo, Mr. Ravi Maloo
For Respondents: Mr. O.P. Mehta, Mr. Tanay Jain, Mr. Arpit Bhoot, Mr. V.D. Gaur, Mr. Pawan Gupta
Advocate Appeared:
For the Petitioners: Mr. S.K. Maloo, Mr. Ravi Maloo
For Respondents: Mr. O.P. Mehta, Mr. Tanay Jain, Mr. Arpit Bhoot, Mr. V.D. Gaur, Mr. Pawan Gupta
Table of Contents
2. Petitioner argued issue of admissibility based on non-registration and insufficient stamp duty; respondent opposed as mixed question requiring evidence. (Para 11 , 12 )
3. Non-registration of agreement to sell does not bar evidence in specific performance suit; insufficient stamp duty requires statutory compliance. (Para 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 )
4. Issue involving mixed question of fact and law cannot be tried as preliminary issue under Order XIV Rule 2 CPC. (Para 15 , 25 )
5. Writ petition disposed of; trial court directed to impound document for stamp duty determination and expedite trial within nine months. (Para 36 )
6. Can an unregistered agreement to sell be admitted in evidence in a suit for specific performance?
Yes, under the proviso to Section 49 of the Registration Act, 1908, an unregistered agreement to sell can be received as evidence of a contract in a suit for specific performance. (Para 19 , 22 )
7. What is the procedure for admitting an insufficiently stamped instrument in evidence?
The instrument cannot be admitted in its existing form; the court must impound it, determine the deficient stamp duty and penalty, and then admit it upon payment. (Para 20 , 22 , 25 , 26 , 27 )
8. When can a preliminary issue be decided under Order XIV Rule 2 CPC?
A preliminary issue can be decided only if it is a pure question of law relating to the court's jurisdiction or a statutory bar to the suit, not a mixed question of fact and law. (Para 14 , 15 )
Order :
1. The present writ petition under Articles 226 and 227 of the Constitution of India has been filed against the order dated 17.08.2017 (Annexure-4) passed by the learned Additional District Judge No.4, Jodhpur Metropolitan in Civil Original Suit No.190/2014, whereby the application of the petitioner seeking consideration and disposal of Issue No.4 as a preliminary issue was declined.
2. The relevant facts leading to filing of the writ petition are that the respondent-plaintiffs instituted a civil suit in relation to the property in question, relying upon, inter alia, an agreement dated 04.03.1976 and another agreement dated 21.06.2001. A certified copy of the plaint and the documents relied upon by the plaintiffs were placed on the record of the civil suit.
3. The defendants contested the suit by filing their respective written statements. The defendants, inter alia, disputed the enforceability and admissibility of the documents relied upon by the plaintiffs. It was specifically pleaded that the alleged agreements were neither duly stamped nor registered and, therefore, were not admissible in evidence. It was also pleaded that certain defendants were minors at the relevant time and that the alleged agreement was otherwise incapable of conferring the rights claimed by the plaintiffs.
4. On 10.07.2009, the learned trial Court framed ten issues in the suit. Issue No.4 was framed in substance to the effect as to whether the document relied upon by the plaintiffs was inadmissible in evidence on account of not having been executed on sufficient stamp paper and not being registered.
5. Thereafter, the proceedings continued for several years. On 10.10.2011, the plaintiff's evidence by way of affidavit was tendered. At that stage, an objection was raised on behalf of defendant No.1 with regard to the admissibility of the document relied upon by the plaintiffs, specifically on the ground that the document was neither registered nor properly stamped. The trial Court thereupon directed that arguments be heard first on Issue No.4. The matter, however, did not attain finality on Issue No.4 and the proceedings continued to be adjourned from time to time. On 27.11.2012, the original suit was transferred from the Court of learned Additional District Judge No.2 to the Court of learned Additional District Judge No.6. Subsequently, after further proceedings, the suit was again transferred and ultimately came before the Court of learned Additional District Judge No.4.
6. During the pendency of the proceedings, proceedings under Order XXII Rules 3 and 9 CPC were undertaken on account of the death of the plaintiff(s), resulting in substitution of the legal representatives. The proceedings on Issue No.4 nevertheless continued and the issue remained pending without being finally adjudicated.
7. On 08.07.2015, the trial Court passed a detailed order in the proceedings concerning Issue No.4. The plaintiffs thereafter amended the title of the suit and the matter was again fixed for arguments on Issue No.4. The issue continued to be listed on several dates. Ultimately, on 18.01.2017, arguments on Issue No.4 commenced. During the course of hearing, the defendants sought time for addressing arguments and the matter was adjourned. The proceedings thereafter continued towards hearing on the said issue.
8. On 17.08.2017, the learned Additional District Judge No.4, Jodhpur Metropolitan passed the impugned order (Annexure-4). The trial Court considered the rival submissions regarding whether Issue No.4 could be treated as a preliminary issue under Order XIV Rules 1 and 2 CPC. The trial Court observed that Issue No.4 was not purely a question of law but involved a mixed question of fact and law. It further held that the documents relied upon by the plaintiffs and the objections regarding their admissibility would require consideration in the light of the material available on record and the evidence to be led by the parties. The trial Court consequently declined
