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HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
Dr. B. Siva Sankara Rao, J.
Buddha Jagadeeswara Rao —Petitioner
versus
Sri Ravi Enterprises —Respondent
Civil Revision Petition No.1850 of 2015
Decided on 23.8.2016
(2001) 7 SCC 573; AIR 1946 PC 51; AIR 1962 AP 132; AIR 1972 AP 373; AIR 1981 AP 175; (1970) 2 Answr 181; 1980(2) ALT 436=1981(1) AnWR 139; 2003(2) ALD 638 = 2002(2) AnWR 725; 2005(5) ALD 206; (2009) 2 SCC 532 – Relied upon
(b) Indian Registration Act – Section 17, 31(2) and 49 – Courts obliged to intimate Registrar office after camncellaton of an instrument of transfer of any immovable property – Section 49 permits admission of unregistered documents in evidnec for collateral purposes – But it should be duly stamped. (Para 9)
AIR 1970 Orissa 22(B); (2009) 2 SCC 532; (2003) 4 SCC 161; 2003(2) ALD 640; 2003(1) LS 382; 2007(6) ALD 781 = 2007(5) ALT 758; 2005(1) ALD 607; 2005 (4) ALT 411 – Relied upon
1975 (2) APLJ 298; A.I.R. 1976 AP 74; A.I.R. 1953 Patna 365; A.I.R. 1946 PC 51; A.I.R. 1919 Privy Council 44; 1975 (2) APLJ 298; A.I.R. 1976 AP 74; A.I.R. 1953 Patna 365; A.I.R. 1946 PC 51; A.I.R. 1919 Privy Council 44 – Referred
(c) Interpretation of statute – Definition – Definition not available in one Act – Can be imported from the other Act and applied – Even if two Act not in pari material. (Para 10)
AIR 1970 Bombay 109(E); AIR 1928 Bombay 553 – Relied upon.
(d) Indian Stamp Act – Section 35 r/w section 49, Indian Registration Act – Unregistered document can be used in evidence for collateral purposes – But a docment not duly stamped is not admissible at all. (Para 11, 26)
(2011) 14 SCC 66; (2013) 4 SCC 354 – Relied upon
1999(3) MLJ 423; A.I.R. 1942 Bombay 268; A.I.R. 1932 PC 55; 1969(1) SCWR; AIR 1959 SC 199; A.I.R. 1977 AP 371; 1975(2) APLJ 298; 1975(2) AnWR; 226 (1)APLJ 372; 2005 (4) ALT; (2008) 8 S.C.C. 564; (2010) 5 S.C.C. 401 – Referred
(e) Indian Stamp Act – Section 35 – Penalty on stamp not duly paid – Depends upon market value of propertry on date of impounding. (Para 13)
1967(2) AnWR 515 (FB); 1959(2) AnWR 102 (FB) – Relied upon
AIR 1953 Masras 764 (FB) – Distinguished
AIR 1992 AP 183; AIR 1968 AP 2013 (FB); AIR 2001 SC 358=2001(1) ALD SC 57; AIR 1962 Punjab 167 – Referred.
(f) Indian Stamp Act – Section 35 – Impounding – Question arises when a document is terndered in evidence – Without that court cannot consider question of stamp duty – Only when original document is sent to the Collector at request of party u/s. 38(2), trial need not be stayed till the document is received back by the Court. (Para 15)
1961(1) AnWR 425; A.I.R. 1958 659; 1955(1) MLJ 457; 1997(2) AnWR 42 = 1997(3) ALD 336; AIR 1975 AP 96; AIR 1977 AP 397 A.I.R. 1970 MP 74 (FB); 2005(1) ALT 507; 2000 (3) ALD 649 (DB); AIR 1981 AP 274; AIR 1975 AP 96; 1967(2) AnWR 268 – Referred
(g) Section 35 – For determining stamp duty nature of the instrument and not its heading is relevant. (Para 16)
A.I.R. 1951 Madras 209: AIR 1972 Mysore 209; AIR 1955 Ap 257; AIR 1986 SC 403; AIR 1977 SC 500; AIR 1976 AP 417; AIR1970 Madras 515 AIR 1970 Madras 2; AIR 1970 Madras 5; AIR 1956 AP 252; AIR 1962 AP 145; AIR 1970 Madras 10; 1967 (2) AnWR 515 (FB) – Redferred
(h) Section 35 – Waiver – On objection from opposite party before admission of a document court would be required to consider sufficiency or otherwise of stamp duty – Such objections are required to be decided instantaneously (Para 17)
(2007) 1LS (SC) 111; 2002 (2) CLJ 449; 2005 (1) CLJ 249 – Referred
(i) Section 2(14) – Instrument – A copy of a document cannot be called as an instrument – Waiver in one proceeding cannot be carried in to other proceeding. (Para 18, 19, 20)
A.I.R. 1971 SC 1070; A.I.R. 1962 SC 110; A.I.R. 1973 AP 398; 2002 (5) ALT 624 = 2002 (4) ALD 808 = 2002 LS 467; A.I.R. 1946 Madras 298 Referred
(j) Stamp Act – Sections 33, 38 and 40 r/w section 17, Registration Act – Question of an instrument whether necessarily regisrrable or not u/s 17 can be gone into only when it is duly stanped. (Para 22)
(k) Administration of justice – Preliminary objections – Objections as to regiatration and stamp duty of an instrumnent sought to be admitted in evidence – Should be decided instantaneously – Other objections may be left to be decided in due course – Instantly trial court rightly upheld objection on stamp duty on the document. (Para 29)
Result: Revision petition disposed of.
Dr. B. Siva Sankara Rao, J.—The revision involves the questions as to whether a copy of an unstamped document can be called as instrument under Section 2(14) of the Stamp Act and if not is it not an inadmissible document for not to exhibit, unless original is produced to cause impound and that too when the original document is undisputedly available in another proceeding that was marked with no objection for stamp duty therein for collateral purpose, (apart from what is meant by collateral purpose under Section 49 of the Registration Act from its wording), from not a registered lease deed, still is it not a bar to exhibit in the present proceedings in view of the specific wording of Section 35 of the Stamp Act confining to same proceedings of waiver of objection by not extending to any other proceeding even between same parties and any earlier expression by not considering properly said provision is still a binding precedent and if not it still requires any reference to a Division Bench in this regard.
2. The revision is filed impugning the docket order passed by the lower Court in the suit pending trial during course of P.W. 1’s evidence on dated 19.12.2014, refusing permission to exhibit as secondary evidence the certified copy obtained from a Court proceeding in another suit, where the so called lease deed unregistered and not duly stamped was already exhibited without objection on stamp duty between parties interse for collateral purpose, when copy sought to exhibit the same in the present suit.
3. The facts in nutshell for purpose of answering the revision lis are: Plaintiff-B. Jagadeeshwar Rao in O.S.No.453 of 2007 on the file of Principal Junior Civil Judge, Anakapalle, maintained against the defendant-lessee, Sri Ravi Enterprises-Proprietor, K. Guru Murthy, the suit for recovery of money towards rentals due.
4. The learned counsel for the plaintiff-revision petitioner assailed the order saying once the original lease unregistered and even not-duly stamped document is exhibited for collateral purpose between parties interse in another proceeding without objection on stamp duty, the certified copy obtained from that court is admissible when original undisputedly lying in that another suit and refusal to exhibit the same is unsustainable and said docket order is liable to be set aside by allowing the revision and in support of the submission the learned counsel for the revision petitioner mainly placed reliance on a single judge expression of this court in Lakkaraju Radha Krishna versus Pyarle Sri Rama Sarma and Others.
5. Whereas it is the submission of the Counsel for the revision respondent-defendant that the order of the lower court holds good and for this court while sitting in revision, within its limited scope, there is nothing to interfere and the expression in Lakkaraju Radha Krishna supra is hit by the principle of per-incuriam and not binding for same was rendered in ignorance of the wording of Section 35 of the Stamp Act.
6. Heard both sides at length including from the expression in Lakkaraju Radha Krishna supra among several expressions placed reliance in support of the rival contentions and perused the material on record.
7. Before coming to any further facts if at all for answering the revision lis, it is necessary to consider the scope of law from the relevant provisions and propositions.
8. The Indian Stamp Act is a fiscal legislation with an object to protect revenue & to collect revenue (tax) in the shape of stamps on transactions covered by the instruments. It is in fact to exclude proof of any transaction by an instrument not duly stamped till Stamp duty is levied and paid in order to protect the revenue-as held in Hameed versus Abdul. (2001) 7 S.C.C. 573. The Privy Council in Ram Rattan versus Parma Nand A.I.R. 1946 PC 51, held way back in 1946 that the words for any purpose used in Section 35 of the Stamp Act, should be given their natural meaning and effect and would include a collateral
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