Sri M Devaraj Vs the State of Karnataka

THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 02.12.2020 PASSED BY THE COURT OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, RAMANAGARA IN O.S. NO.144/2008, PRODUCED AT ANNEXURE-A AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This petition under Article 227 of the Constitution of India is filed with a prayer to quash the order dated 02.12.2020 passed in O.S.No.144/2008 by the Court of Addl. Senior Civil Judge & JMFC, Ramanagara.

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Heard the learned Counsel for the petitioner and the learned AGA for respondent no.1-State.

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Petitioner had filed O.S.No.144/2008 before the jurisdictional Civil Court at Ramanagara, seeking the relief of specific performance of agreement to sell dated 18.05.2005. The dispute between the parties was settled outside court during the pendency of O.S.No.144/2008 and the suit was dismissed as not pressed thereafter on 27.01.2011. Subsequently, an application was filed before the Trial Court in O.S.No.144/2008 by the plaintiff under Order XIII Rule 9 read with Section 151 of CPC with a prayer to return the original documents marked in the suit and also the original agreement of sale dated 18.05.2005. Vide the order impugned, the learned

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Trial judge while disposing of the application filed by the plaintiff, has held that petitioner/plaintiff is liable to pay stamp duty as provided under Article 5(e) of the Karnataka Stamp Act, 1957 (for short, 'the Act') on the agreement for sale dated 18.05.2005. It is under these circumstances, petitioner is before this court assailing the order impugned passed on the application filed by the petitioner seeking return of the original agreement of sale and the original documents marked in the suit.

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Learned Counsel for the petitioner submits that the original agreement for sale was not marked before the Trial Court, and therefore, the learned Trial Judge was not justified in holding that the said instrument is liable to be impounded under Section 33 of the Act. In support of his argument, he has placed reliance on the judgment of this Court in the case of S.SURESH VS SHRI L.POTHE GOWDA & OTHERS - ILR 2010 KAR 5156 .

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Section 33 of the Act, reads as under:

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"33. Examination and impounding of

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instruments.- (1) Every person having by law or consent of parties authority to receive evidence, and

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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.

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(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 the State of Karnataka when such instrument was executed or first executed:

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Provided that,—

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(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;

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(b) in the case of a Judge of the 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.

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(3) For the purposes of this section, in cases of doubt, the Government may determine,—

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(a) what offices shall be deemed to be public offices; and

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(b) who shall be deemed to be persons in charge of public offices."

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A reading of the aforesaid provision of law makes it very clear that every person having by law or consent of parties authority to receive evidence, and every person in-charge of public office before whom an 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.

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From the aforesaid, it is apparent that the moment a document is produced or a document comes before a public officer as stated in Section 33 of the Act, he is duty bound to consider whether the said document is duly stamped, and subsection (2) of Section 33 of the Act provides that, for the said purpose, he is required to examine the instrument in order to ascertain whether the instrument is properly stamped. Therefore, it is not necessary that for the purpose of invoking the powers under Section 33 of the Act, the

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instrument/document ought to have been tendered in evidence or marked during the course of evidence. Even if it is produced or if it comes before the court otherwise, it becomes the duty of the court to examine the said document whether it is properly stamped or not.

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In Suresh's case, this Court has observed that a document or instrument which is required to be duly stamped and is not duly stamped or insufficiently stamped, is inadmissible in evidence, and it is also observed that once a document is marked, the admissibility of the said document on the ground that it is not properly stamped cannot be raised in view of Section 35 of the Act. In the facts and circumstances of the said case, it has been further observed that in the light of procedure prescribed under the Code of Civil Procedure and under Sections 33, 34 and 35 of the Act, impounding of the document has to be considered only when it is produced in evidence and not otherwise. That does not mean that a document which is not marked cannot be impounded in exercise of the powers of the Court under Section 33 of the Act.

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9. In the case of CHANVAL ANANTHAREDDY VERSUS STATE

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OF MYSORE - 1971 MYS.LJ. SH.N. 58 , this Court has held that power to impound the document under Section 33 of the Act, does not come to an end with the disposal of the suit. Therefore, I am of the opinion that the Trial Court was fully justified in passing the order impugned directing the petitioner to pay the deficit stamp duty and penalty on the sale agreement, which is found to be not properly stamped. Under the circumstances, I am of the opinion that this writ petition does not merit consideration. Accordingly, the writ petition is dismissed.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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KK

Sri M Devaraj v. the State of Karnataka

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Sri M Devaraj v. the State of Karnataka

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