The central legal point established in the judgment is the obligation of the trial court to judicially determine the admissibility of a document with insufficient stamping and the power to impound the document under Sections 33 and 34 of the Indian Stamp Act.

JUDGMENT :

RITU BAHRI. J.

1. Challenge in this petition is to order dated 18.04.2019 passed by learned Civil Judge (Jr. Divn.) Ludhiana whereby an application dated 13.02.2019 (P-4) of the petitioner-defendant, has been dismissed.

2. Learned counsel for the petitioner-defendant inter alia contends that the application of the petitioner under Section 35 of the Indian Stamp Act (for short 'the Act') for impounding the alleged agreement to sell dated 25.05.2015 and for issuance of direction to the plaintiff to pay the deficiency in stamp along with 10 times penalty has wrongly been dismissed, vide impugned order dated 18.04.2019 by referring to judgment of Hon'ble Apex Court in a case of Javer Chand vs. Pukhraj Surana, 1961 AIR (SC) 1655.

3. Learned counsel is relying upon judgment of Hon'ble the Supreme Court of India in a case of Ram Rattan (dead) by legal representatives v. Bajranj Lai and others, 1978 AIR (SC) 1393 wherein Javer Chand's case (supra) has been discussed. Learned counsel contend that if the document is not duly stamped then at the stage of objection, the trial Court has to decide the objection and if it is not decided after the objection was raised then the application cannot be dismissed, in view of Section 36 of the Act.

4. Reference has further been made to judgment of Hon'ble the Supreme Court in a case of Om Prakash v. Laxminarayan and others, 2013 (4) RCR (Civil) 747

Heard learned counsel for the petitioner.

5. In Ram Rattan's case (supra), Hon'ble the Supreme Court in para 6 has observed as under:-

6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial judge to apply his mind to the objection raised and decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided-, it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would nonetheless be obligatory upon the court to decide the objection. If after applying mind to the rival contentions the trial court admits a document in evidence, s. 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The Court, and of necessity it would be trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the Court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting s. 36 (see Javar Chand v. Pukhraj Surana).(1) The, endorsement made by the learned trial judge that "objected, allowed subject to objections clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation s. 36 would not be attracted.

6. Further in Om Parkash's case (supra), Hon'ble the Supreme Court in para 10 and 11 has observed as under:-

10. The aforesaid Explanation has come into effect with effect from 26th September, 1990. The Explanation, therefore, creates a legal fiction. The agreement to sell shall be deemed to be a conveyance and stamp duty is leviable on an instrument whereby possession has been transferred. Thus the agre