ORDER

The present petition under Article 227 of the Constitution of India has been filed challenging the order dated 23.08.2023 (Annexure P/6) passed by the trial Court, whereby the application filed by the petitioner – defendant No.1 for impounding of document in terms of Sections 33 and 35 of Indian Stamp Act has been rejected.

2. Learned counsel for the petitioner while assailing the order passed by the trial Court submits that the present petitioner – defendant No.1 has submitted an agreement, which has been exhibited as Exhibit D/1 on 01.08.2019 before the Court below by the petitioner. The said document is insufficiently stamped, but neither the Court nor the plaintiff raised any objection at that time.

The petitioner filed application for impounding the said document as it is insufficiently stamped so that it may be read in evidence.

3. Learned counsel further submits that the trial Court has wrongly rejected the application for impounding of the said document on the ground that the present petitioner – defendant No.1 has filed the application at belated stage and has fixed the case for defendant evidence. Learned counsel further submits that in terms of Section 33 of the Indian Stamp Act, 1899, it is the duty of the authority to impound the document produced before the said authority. Thus, learned counsel submits that insufficiently document was produced before the Court below and the time line of filing application by present petitioner in that regard is not relevant.

4. Per contra, learned counsel for the plaintiff – present respondent No.1 has supported the order and stated that the application filed by defendant No.1

was only delaying tactics as the suit is going since the year 2017.

5. Heard learned counsel for the parties.

6. The statutory provision as contend in Sections 33 and 35 of the Indian Stamp Act are as under:-

"33. Examination and impounding of instruments.-(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.

(2 ) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed:

Provided that- (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the [Code of Criminal Procedure, 1898 (5 of 1898)]

(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf (3) For the purposes of this section, in cases of doubt,- (a) [the [State Government] [Substituted by A.O.1937, for "the Governor-General in Council" .]] may determine what offices shall be deemed to be public offices; and (b) [the [State Government] [Substituted by A.O.1937, for "the Governor-General in Council" .]] may determine who shall be deemed to be persons in charge of public offices."

35. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that - (a) any such instrument [shall] [Substituted by Act 21 of 2006, Section 69, for "not being an in