Manmohan Singh v. Additional District Judge

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR S.B. Civil Writ Petition No. 5995/2017 1. Rekhraj S/o Madan Lal, 2. Sumer Singh S/o Madan Lal 3. Manmohan Singh S/o Madan Lal, All By Caste Kachhwaha Mali, R/o H. No.82, Income TaxColony, Imratiya Bera, Paota C Road, Jodhpur.All By Caste Kachhwaha Mali, R/o H. No.82, Income TaxColony, Imratiya Bera, Paota C Road, Jodhpur. ----Petitioners Versus 1. Additional District Judge No.3, Jodhpur Metropolitan, 2. Roshan Lal Kachhwaha S/o Madan Lal, R/o H.no.82,Income Tax Colony, Imratiya Bera, Paota C Road, Jodhpur.Income Tax Colony, Imratiya Bera, Paota C Road, Jodhpur. 3. Smt. Kalawati W/o Roshan Lal, R/o H.no.82, Income TaxColony, Imratiya Bera, Paota C Road, Jodhpur.Colony, Imratiya Bera, Paota C Road, Jodhpur. 4. State Of Rajasthan Through Collector, Jodhpur. 5. Police Commissionerate, Jodhpur Metropolitan, Jodhpur. ----Respondents For Petitioner(s) For Respondent(s) : Mr. O. P. Mehta. : Mr. O. P. Boob. JUSTICE DINESH MEHTA 04/02/2019 Judgment The present writ petition is directed against the order dated03.11.2016, passed by learned Additional District Judge No.3,Jodhpur Metropolitan, Jodhpur (hereinafter referred to as the ‘trialCourt’), vide which the petitioners’ application dated 20.01.2016filed under Section 37 of the Rajasthan Stamps Act, 1998(hereinafter referred to as the ‘Act of 1998’) has been dismissed. Calling in question the above referred order dated03.11.2016, Mr. Mehta learned counsel for the petitioners apprised the Court about the preliminary facts relevant for the presentpurpose, which run as under : The plaintiffs-petitioners instituted a suit for possession andmandatory injunction against the defendants-respondents No.1 &2, interalia stating that the suit property has been gifted to themby Late Shri Madan by way of registered gift deed. In response tothe suit aforesaid, the defendants filed a written statement-cum-counter claim alleging interalia that the suit property belongs tothem, as the same had been sold through agreement to sell dated01.12.2005 and registered sale deed dated 05.04.2012 which hadbeen executed in furtherance of the agreement to sell dated01.12.2005. He pointed out that the agreement to sell as well as power ofattorney dated 01.12.2005 (Annex.6) were unstamped documentsand as such they are not only inadmissible in evidence, but werealso required to be impounded by the trial Court, as and whensuch fact came to its notice. Highlighting these facts, thepetitioners had filed an application dated 20.01.2016, underSection 37 of the Act and requested the trial Court to impoundthese documents for determination and payment of appropriatestamp duty; but the trial Court has rejected the said application,while observing that the issue of admissibility of the documentshas to be determined at the time of final hearing of the suit. Assailing the order dated 03.11.2016, learned counsel forthe petitioners argued that the admissibility of the document andpayment of appropriate stamp duty are two different aspects. Asand when unstamped or insufficiently stamped document comesto the notice of the Court or any authority, he is duty bound to impound the same and forward it to the appropriate authority fordetermination of appropriate stamp duty. Per contra, Mr. Boob learned counsel for the respondentscontended that at the time of executing the registered sale deed,appropriate stamp duty had been paid and hence, it cannot besaid that agreement to sell and power of attorney dated01.12.2005 are inappropriately stamped. He further contendedthat trial Court committed no error of law in rejecting petitioners’application, inasmuch as it is settled position of law thatadmissibility of the documents has to be decided at the time offinal hearing of the suit. impound the same and forward it to the appropriate authority fordetermination of appropriate stamp duty. Per contra, Mr. Boob learned counsel for the respondentscontended that at the time of executing the registered sale deed,appropriate stamp duty had been paid and hence, it cannot besaid that agreement to sell and power of attorney dated01.12.2005 are inappropriately stamped. He further contendedthat trial Court committed no error of law in rejecting petitioners’application, inasmuch as it is settled position of law thatadmissibility of the documents has to be decided at the time offinal hearing of the suit. Having heard learned counsel for the parties and uponperusal of the material available on record, this Court is of thefirm view that the trial Court has committed serious error of law inrejecting petitioners’ application. Rejection of petitioners’application is a result of rather misreading of provisions of Section37 of the Act; which enjoins upon any Court to impound anunstamped or insufficiently stamped document and refer it to acompetent authority for determination of appropriate stamp duty. It is true that such objection can be raised at the time ofleading the document in evidence and a party can oppose markingof exhibit on such document, and per force the Section 39 of theAct, the same shall not be admissible in evidence. However,Section 37 of the Act operates differently. Once the petitionershave moved an application under Section 37 of the Act, it wasincumbent upon the Court below to have examined it and shouldhave impounded the same to be sent to the Collector (Stamps),for determination of appropriate stamp duty. The agreement to sell dated 01.12.2005 prima facie comeswithin the ambit of conveyance, as the possession has beenhanded over to the vendee and prima facie it is not properlystamped. The impugned order dated 03.11.2016 passed by the Courtbelow being contrary to law, as noticed above, is, therefore,quashed and set aside. The petitioners’ application dated 20.01.2016 standsallowed. The trial Court is directed to impound both the documentsnamely; agreement to sell and power of attorney dated01.12.2005 and send it to Collector (Stamps), Jodhpur fordetermination of appropriate stamp duty. Both the parties shall appear before the Collector (Stamps),Jodhpur on 25.02.2019 and make their submissions in relation toapplicability and sufficiency of stamp duty, on the contentiousdocuments. Needless to observe that the defendants relying upon thedocuments dated 01.12.2005 shall be at liberty to makesubmissions and produce the relevant document(s), to assert thatthe appropriate stamp duty has been paid. The Collector (Stamps) shall complete the requisite exercisewithin a period of two months from today and remit thedocuments after the determination and payment of stamp duty, ifany, qua the subject agreement to sell and power of attorney. The writ petition is allowed as indicated above. (DINESH MEHTA),J