Advocates:
['SANJAY NAHAR', '', 'PUSHKAR TAIMINI', 'DR SACHIN ACHARYA']

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[CW-769/2013]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Writ Petition No. 769/2013

Smt. Mangi Bai And Anr.

----Petitioner

Versus

Nathu Lal

----Respondent

For Petitioner(s)

:

Mr. Sanjay Nahar

For Respondent(s)

:

Dr. Sachin Acharya

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

02/12/2021

The petitioner has preferred this writ petition claiming for the

following prayer:

“It is therefore, respectfully prayed that this writ petition may kindly

be allowed and the objection raised by the petitioners regarding the

inadmissibility of the document dated 04.07.1992 (Annexure 3) may

also kindly be allowed and the impugned order dated 01.11.2012

(Annexure 4) may kindly be quashed and set aside.”

Counsel for the petitioner submits that the plaintiff –

respondent filed a suit for permanent injunction against the

petitioners – defendants relying his suit mainly on the document

dated 04.07.1992 executed on a Rs.5/- stamp.

Learned counsel for the petitioner further submits that the

aforementioned document is a forged document and since the

same is executed on insufficient stamp and unregistered, and

therefore cannot be taken into evidence; and does not create any

right in the favour of the plaintiff.

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Learned counsel for the petitioner also submits that the

plaint filed by the plaintiff – respondent during the pendency of

the suit, seeking temporary injunction, was rejected by the

Learned Trial Court vide order dated 16.03.2012.

Learned counsel for the petitioner also submits that the

Learned Trial Court, vide order dated 01.11.2012, rejected the

objections raised by the petitioner-defendants holding that the suit

was filed for declaration only and suit was not filed seeking relief

regarding ownership of the plot; and further held that the

document dated 04.07.1992 was merely a writing in pursuance of

a family settlement which can be exhibited in evidence for the

collateral purpose.

Learned counsel for the petitioner also submits that the

aforementioned document, was executed on a stamp of a proper

value, as was required for it to be entered into evidence, as under

section 35 of the Indian Stamp Act, 1899. Section 35 of the Indian

Stamp Act, 1899 reads as follows: –

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] be admitted in evidence on

payment of the duty with which the same is chargeable, or, in the case of an

instrument insufficiently stamped, of the amount required to make up such

duty, together with a penalty of five rupees, or, when ten times the amount of

the proper duty or deficient portion thereof exceeds five rupees, of a sum equal

to ten times such duty or portion; …

Learned counsel for the petitioner also submits that Section 39 of the Rajasthan

Stamp Act, 1998 clearly lays down a legislative mandate for the instruments not

duly stamped inadmissible in evidence.

Section 39 of the Rajasthan Stamp Act reads as follows: –

39. Instruments not duly stamped inadmissible in evidence, etc. --

No instrument chargeable with duty under this Act shall be admitted in evidence for

any purpose by any person having by law or consent of parties authority to receive

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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, subject to all just exceptions, be admitted in evidence on

payment of, - Learned counsel for the petitioner also submits that as per Section