Advocates:
['M/S GAUTAM MUKHERJI', '', 'S MISHRA', 'P MUKHERJI', 'S D RAY', 'A C PANDA', 'B H MOHANTY']

ORISSA HIGH COURT: CUTTACK.

W.P.(C) No. 14123 OF 2012

In the matter of application under Articles 226 and 227 of the

Constitution of India

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Braja Sundar Nanda …… Petitioner

-Versus-

Pravabati Kar and others. …... Opp. Parties.

For Petitioner : M/s. Goutam Mukherji,

P.Mukherji, A.C. Panda,

S.D. Ray and S.Mishra.

.

For opp. parties: Mr. B.H.Mohanty, Sr. Advocate.

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Decided on 14.08.2013

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PRESENT :

THE HONOURABLE SHRI JUSTICE M.M. DAS

M. M. DAS, J.

This writ petition has been filed by the defendant

no. 1 in C.S. No. 654 of 2011-I pending before the learned Civil

Judge (Senior Division), First Court, Cuttack against the order

passed by the said court on 27.7.2012.

2.

The opp. party no. 1 filed the aforementioned

suit seeking a decree for specific performance of contract

directing the defendants 1 to 7 to execute and register a sale

deed in her favour in respect of the suit land described in

Schedule-A, as delineated in the sketch map given in

Schedule – C, of the plaint, on receiving the balance

consideration money of Rs.15.00 lakhs within a time to be fixed

by the court, failing which for execution of the sale deed

through court. On summons being served, the petitioner, who

is defendant no. 1 appeared and filed his written statement

denying the entire allegations made in the plaint. The other

defendants have also filed their respective written statement

denying the plaint averments. After framing of issues, the suit

being ready for hearing, the plaintiff – opp. party no. 1 filed her

evidence on affidavit. In course of her cross-examination, she

produced the alleged plain paper agreement in evidence and

sought to mark it as an exhibit. On objection being raised with

regard to the authenticity of the said document, which was

unstamped and unregistered, the said document has been

marked as an exhibit with objection. The petitioner’s contention

that the said document could not have been marked as an

exhibit was overruled by the impugned order.

3.

It appears from the impugned order that the

learned trial court after hearing the parties appreciated that the

document is compulsorily registerable. However, by the

impugned order, it held that the plaintiff being a lady is entitled

for exemption of court fee and hence, she can be directed to pay

the stamp fee along with the registration fee, but at this

juncture the plaintiff cannot be compelled to pay the stamp

duty and registration fee along with the penalty which will

2

definitely cause prejudice to the plaintiff. The relevant portion

of the impugned order passed by the learned trial court is

quoted hereunder:-

“Both the parties are heard. Admittedly, Ext. 1

has been marked with objection and admissibility of

the same will be considered at the time of the hearing

of suit and if it is held that Ext. 1 is one agreement for

sale of immovable property basing on which possession

has been delivered in favour of the plaintiff before or

after execution of the agreement, then plaintiff, who is

a lady and who is entitled for exemption of court fees,

can be directed to pay the stamp fee along with

registration fees, as per the amendment of stamp act

by Govt. of Orissa, as mentioned earlier. However, at

this juncture the plaintiff cannot be compelled to pay

the stamp duty and registration fees along with

penalty, as motioned earlier, which will definitely cause