Sri P J Sridhara vs Smt Saraswathamma
2021 Latest Caselaw 4865 Kant

                                     W.P.No.26360/2018

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 26TH DAY OF NOVEMBER 2021

                          BEFORE

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

        WRIT PETITION No.26360/2018(GM-CPC)

BETWEEN:

SRI.P.J.SRIDHARA
S/O LATE JAGANATH
AGED ABOUT 50 YEARS
R/AT PALAHALLI VILLAGE
BELOGOLA HOBLI
SRIRANGAPATHNA TALUK
MANDYA - 571 438                       ... PETITIONER

(BY SRI.JAVEED S, ADV.)

AND:

1.     SMT.SARASWATHAMMA
       W/O LATE RANGASWAMY
       AGED ABOUT 64 YEARS

2.     SMT.PRAMILA
       D/O LATE RANGASWAMY
       AGED ABOUT 40 YEARS

       BOTH ARE RESIDING AT
       R/AT PALAHALLI VILLAGE
       BELOGOLA HOBLI
       SRIRANGAPATNA TALUK
       MANDYA - 571 438            ... RESPONDENTS

(BY SRI.N.NARESH, ADV. FOR R2;
    NOTICE TO R1 IS DISPENSED WITH
    VIDE ORDER DATED 11.11.2021)

     THIS PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO SET ASIDE/QUASH
                                              W.P.No.26360/2018

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THE    IMPUGNED    ORDER   DATED    14.02.2018   IN
O.S.NO.324/2013 PASSED BY THE ADDITIONAL CIVIL AND
JMFC JUDGE AT SRIRANGAPATNA PASSED AN IMPUGNED
ORDER ON DOCUMENT FILED BY THE PETITIONER/PLAINTIFF
PRODUCED AS ANNEXURE - D.

     THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                          ORDER

Aggrieved by the order of the trial Court declining

to admit the documents tendered by him in evidence

the plaintiff in OS No.324/2013 on the file of Addl. Civil

Judge and JMFC, Srirangapatna has filed the above

petition.

2. Petitioner filed O.S.No.324/2013 against the

respondents before Addl. Civil Judge and JMFC,

Srirangapatna for permanent injunction. Jagannatha

the father of the petitioner and Rangaswamy, husband

and father of respondent Nos.1 and 2 were full brothers.

3. The subject matter of the suit was land

bearing Sy.No.476/1 measuring 66 guntas of Palahalli

village, Srirangapatna Taluk. The petitioner claimed

that, in the partition between Jagannatha and W.P.No.26360/2018

Rangaswamy, suit schedule property was allotted to the

share of Rangaswamy. He further claimed that under

the memorandum of settlement Rangaswany

relinquished his right in the suit schedule property

receiving Rs.1,00,000/- and put Jagannatha in

possession. He further claimed that the respondents

were obstructing their possession. Therefore they

sought decree for permanent injunction.

4. The suit was contested by the respondents

denying any such relinquishment. During the course of

the petitioner's evidence, he tendered the agreement

as per Annexure-C dated 29.05.2002 under which

Rangaswamy purportedly relinquished his right in favour

of Jagannatha. The respondents objected for admitting

the said document in evidence on the ground that the

document was unregistered, therefore the same is not

admissible in evidence.

5. The trial Court by the impugned order

upheld the objection and declined to admit the

document in evidence on the ground that Section 17 of W.P.No.26360/2018

the Registration Act, 1908 compulsorily requires

registration of such document and in view of Section 49

of the said Act, a document cannot be marked for

collateral purpose. The trial Court also observed that the

document is not duly stamped.

6. Of course, the property sought to be

conveyed under the agreement was worth more than

Rs.100/- and as per Section 17 of the Registration Act

that required registration. As per Sections 33 and 34 of

the Karnataka Stamp Act, 1966 (for short ' the Stamp

Act') whenever any document is produced before the

Court which in the opinion of the Court is insufficiently

stamped, the Court shall impound and deal with the

same as prescribed under Section 37 of the Stamp Act.

The Court may either send the documents to the Deputy

Commissioner for determining and collecting the duty

and penalty or itself decide the duty and penalty

payable, collect and remit the same to the concerned

authority. In this case, the trial Court did not follow

that procedure.

W.P.No.26360/2018

7. So far as objection regarding admissibility

for want of registration of the documents, the Hon'ble

Supreme Court in Bipin Shantilal Panchal vs. State

of Gujarat and another1 has held that any objections

with regard to the admissibility of the document except

the objection with regard to duty and penalty payable

on the same shall be recorded and deferred for

consideration at the final stage of the suit.

8. In para No.14 of the said judgment the

Hon'ble Supreme Court held as follows:

"When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can

(2001)3 SCC 1 W.P.No.26360/2018

keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)"

(Emphasis supplied)

9. In the light of the above such observations

made by the Hon'ble Supreme Court, the trial Court

should have dealt with objection with regard to payment

of duty and penalty as required under Sections 33, 34

and 37 of the Stamp Act and deferred the objection

with regard to admissibility of the documents for want

of registration at the last stage in the final judgment.

10. The trial Court failed to exercise the power

as per Sections 33, 34 and 37 of the Stamp Act and the

aforesaid judgment of the Hon'ble Supreme Court.

Therefore, impugned order is liable to be quashed.

The petition is allowed. The impugned order dated

14.02.2018 passed in O.S.No.324/2013 is hereby W.P.No.26360/2018

quashed. The matter is remitted back to the trial Court

to consider the admissibility of the documents in the

light of the observations made above.

Sd/-

JUDGE akc