ORAL ORDER

(PER: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV)

The present petition has been filed by the defendant before the trial Court calling in question the marking of agreement of sale dated 26.11.1995 at Ex.P.1 by the trial Court.

2. The parties are referred to as per their ranking before the trial Court for the purpose of convenience.

3. It is the specific case of the defendant that at the time of marking of the document an objection was raised on two grounds. Firstly, regarding document not being stamped and secondly regarding document not being registered.

4. It is submitted that insofar as the objection regarding stamp duty, the document was impounded and the stamp duty has been paid. However, the objection against marking of the document on the ground that the document required registration was not accepted by the trial Court and the trial Court has proceeded to mark the document. It is submitted that the trial Court has grossly erred in ignoring the objection regarding the requirement of registration of the document and failed to record any finding in that regard while merely observing that the stamp duty has been paid on the said document.

5. Learned counsel for the plaintiff submits that during the course of argument it is for the trial Court to consider as to whether the said document was required to be registered and if so whether it could be looked into for collateral purpose. It is further submitted that if the Court were to record a finding that the document does not require to be registered then the same may be taken note of.

6. Perused the order dated 07.11.2022. The trial Court has noticed that the deficit stamp duty and penalty has been paid and has proceeded to mark the document.

Insofar as the objection that inspite of stamp duty and penalty having been paid document is not to be marked because it requires registration, has been overruled.

7. It must be noticed that mere marking of the document would not have the effect of curing the defect of document if it requires registration.

8. The trial Court to record a finding as to whether the document is compulsorily registrable in terms of Section 17 of the Registration Act, 1908. In the event, the Court were to record an affirmative finding that the document requires to be registered in terms of Section 17 of the Act then the trial Court may also record a finding whether it could be relied upon in terms of Section 49 of

the Act. However, if the Court were to record a finding that the document does not require registration then a finding to such effect is also to be made.

9. In light of the observations made above, trial Court to record a finding prior to taking up the matter for final arguments. Both parties to mark their appearance without notice on 12.03.2025.

10. Accordingly, the writ petition is disposed off subject to the above observation.

11. It is made clear that marking of the document by itself does not have the effect of overruling objection of the defendant that is kept open in light of the observations made above.

Sd/- (S.SUNIL DUTT YADAV) JUDGE BL List No.: 1 SI No.: 10