JUDGMENT

M. M. DAS, J.

This writ petition has been filed by the defendant no. 1 in C.S. No. 654 of 2011-I pending before the learned Civil Judge (Senior Division), First Court, Cuttack against the order passed by the said court on 27.7.2012.

2. The opp. party no. 1 filed the aforementioned suit seeking a decree for specific performance of contract directing the defendants 1 to 7 to execute and register a sale deed in her favour in respect of the suit land described in Schedule-A, as delineated in the sketch map given in Schedule – C, of the plaint, on receiving the balance consideration money of Rs.15.00 lakhs within a time to be fixed by the court, failing which for execution of the sale deed through court. On summons being served, the petitioner, who is defendant no. 1 appeared and filed his written statement denying the entire allegations made in the plaint. The other defendants have also filed their respective written statement denying the plaint averments. After framing of issues, the suit being ready for hearing, the plaintiff – opp. party no. 1 filed her evidence on affidavit. In course of her cross-examination, she produced the alleged plain paper agreement in evidence and sought to mark it as an exhibit. On objection being raised with regard to the authenticity of the said document, which was unstamped and unregistered, the said document has been marked as an exhibit with objection. The petitioner’s contention that the said document could not have been marked as an exhibit was overruled by the impugned order.

3. It appears from the impugned order that the learned trial court after hearing the parties appreciated that the document is compulsorily registerable. However, by the impugned order, it held that the plaintiff being a lady is entitled for exemption of court fee and hence, she can be directed to pay the stamp fee along with the registration fee, but at this juncture the plaintiff cannot be compelled to pay the stamp duty and registration fee along with the penalty which will definitely cause prejudice to the plaintiff. The relevant portion of the impugned order passed by the learned trial court is quoted hereunder:-

“Both the parties are heard. Admittedly, Ext. 1 has been marked with objection and admissibility of the same will be considered at the time of the hearing of suit and if it is held that Ext. 1 is one agreement for sale of immovable property basing on which possession has been delivered in favour of the plaintiff before or after execution of the agreement, then plaintiff, who is a lady and who is entitled for exemption of court fees, can be directed to pay the stamp fee along with registration fees, as per the amendment of stamp act by Govt. of Orissa, as mentioned earlier. However, at this juncture the plaintiff cannot be compelled to pay the stamp duty and registration fees along with penalty, as motioned earlier, which will definitely cause prejudice to the plaintiff. Therefore, the plaintiff is directed to pay impounding fees as per the schedule 1-A of the stamp duty on instruments, as per Orissa amendment as mentioned earlier, along with penalty as per section 35 of Indian Stamp Act, 1899 for impounding of the same with an undertaking she shall pay the additional stamp duty and registration charges in the event of her success in the original suit. Accordingly, the office is directed to quantify the amount of impounding in this regard and the plaintiff is directed to pay the same positively, with undertaking, as mentioned earlier. The objection raised by defendants in this regard is accordingly determined.

Put up on 30.7.2012 for further cross-examination of PW1 and separate letter be written to the Hon’ble High Court seeking for extension of time for disposal of the suit”.

4. Mr. Mukherjee, learned counsel for the petitioner raised a question of law with regard to marking of the said agreement as exhibit with objection, inter alia, contending that the said agreement unless impounded cannot be mark