ORDER

Mishra , J. -- 1. The present petition is being filed challenging the order dated 2.4.2018, whereby the learned trial Court has calculated the deficit stamp duty to be paid upon the document i.e. agreement to sell dated 15.7.2013 and despite the petitioner arguing the fact that he does not want to tender the said agreement to sell in evidence, the learned trial Court has sent the same to the Collector for impounding. It is pointed out that the civil suit for specific performance of agreement to sell and for permanent injunction with respect to the property as mentioned in para 1 of the plaint was filed by the petitioner-plaintiff. The defendant No.1 and 2, who happens to be the husband and wife have executed an agreement to sell on 15.7.2013 for consideration of Rs.2,50,000/- per bigha and received advance of Rs.5,00,000/- vide cheque No.957126 & 957127 in presence of witnesses. The sale deed was executed in the month of December, 2013 and after execution the remaining consideration amount was to be paid, but despite of several requests, no heed was paid by the defendants No.1 and 2. A notice was issued by the plaintiff on 2.1.2014 showing his readiness and willingness for execution of the sale deed, but the notice was not replied, therefore, again a notice on 15.2.2015 was issued, but the same was also not replied which forced the petitioner to file a civil suit before the learned trial Court for specific performance of agreement to sell and permanent injunction. defendants No.1 and 2 denying all the averments of the plaint and has also denied from agreement dated 15.7.2013 and further stated that the so called advance of Rs.5,00,000/- with respect to some other transactions and ultimately has prayed for dismissal. The plaintiff has filed an affidavit under Order 18 rule 4 of CPC during the course of evidence when the petitioner’s counsel tried to mark exhibit upon the agreement dated 15.7.2013 and objection under section 35 and 38 (2) of Indian Stamp Act was filed by the respondents pointing out the fact that the agreement to sell is not properly stamped. The objection was entertained by the learned trial Court. The plaintiff counsel on 2.4.2018 stated that they do not want to rely upon the agreement to sell dated 15.7.2013 and prayed for recording of plaintiff’s evidence without placing reliance upon the agreement to sell and without marking it as exhibit. It is submitted that once the plaintiff has shown his dis-interest and if he has stated that he does not want to rely upon the document, such document cannot be forced to be relied upon and should have been returned back to the plaintiff. He has relied upon the judgment passed in the case of Satya Narayan v. Ram Singh [2007 (3) MPLJ 384] and in the case of Gajanand Awasthy v. Sharif Khan [2008 (II) MPWN 63] to the effect that deficit stamp duty could not have been calculated by the learned Trial Court, it was the duty of the Collector. He has further relied upon the judgment passed in the case of K.B.Jayaram and another v. Navineethamma and others, AIR 2003 Karnataka 241 and order passed in the case of Manoj Shivhare v. Sunil Kumar Khandelwal and others W.P.No.8429/2012 order dated 9.11.2017, wherein it is held by this Court that in case the plaintiff is not willing to get the document exhibited he cannot be forced to pay the deficit stamp duty. In such circumstances the order passed by the learned Trial Court is perse illegal and has prayed for setting aside of the impugned order.

3. Per contra counsel appearing for the respondents has opposed the contentions of the petitioner and has submitted that the order passed are just and proper as it was the duty of the learned trial Court to impound the documents and send it to the Collector of the districts for payment of deficit Court fees in terms of sections 33, 35 (a) and 38 of the Indian Stamp Act, 1899. It is argued that the learned Trial Court has not committed any error in even calculating the deficit stamp duty be