Karnataka High Court
M P Nataraju vs M N Vishwanath on 9 February, 2024
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NC: 2024:KHC:5597
WP No. 54080 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 54080 OF 2017 (GM-CPC)
BETWEEN:
1. M.P. NATARAJU,
S/O. LATE M.S. PUTTANNA,
AGED ABOUT 63 YEARS,
R/O:7/252, 2ND CROSS
CKM ROAD, KOLLEGALA - 577 440
CHAMARAJANAGAR DISTRICT
SINCE DEAD BY HIS LR'S
1(A) SMT. MAHADEVAMMA,
W/O. LATE M.P. NATARAJU,
AGED ABOUT 65 YEARS.
1(B) SMT. N. NAGARATHNA,
D/O. LATE M.P. NATARAJU,
AGED ABOUT 48 YEARS.
1(C) SMT. VISHALAKSHAMMA,
Digitally signed D/O. LATE M.P. NATARAJU,
by PAVITHRA N AGED ABOUT 50 YEARS.
Location: high
court of 1(D) SRI. N. VISHWANATH,
karnataka
S/O. LATE M.P. NATARAJU,
AGED ABOUT 42 YEARS.
1(E) VIJAYAKUMARI,
D/O. LATE M.P. NATARAJU,
AGED ABOUT 49 YEARS.
...PETITIONERS
(BY SRI: D.S. HOSMATH, ADVOCATE LR'S OF
DECEASED PETITION ON I.A.1/22 TO 3/22)
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WP No. 54080 of 2017
AND:
M.N. VISHWANATH,
S/O. LATE V. NAGARAJAN,
AGED ABOUT 51 YEARS,
R/O:NO.12/32, MUDIGUNDAM,
KOLLEGALA, CHAMARAJANAGAR
DISTRICT - 571 440.
...RESPONDENT
(BY SRI: S. RUPESH KUMAR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS. QUASH
THE ORDER AT ANNEX-E ON I.A.5 DATED 23.10.2017 IN
O.S.119/2013 ON THE FILE OF ADDL. CIVIL JUDGE, KOLLEGALA AND
ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The plaintiff in O.S.No.119/2013 on the file of the learned
Additional Civil Judge, Kollegala (hereinafter referred to as 'the
trial Court' for brevity), is impugning the order dated
23.10.2017, allowing IA No.5 filed by the defendant under
Order 33 and 34 of CPC, impounding the agreement of sale
dated 22.07.2010 produced by the plaintiff.
2. Heard Sri D.S. Hosmath, learned counsel for the
petitioner and Sri S. Rupesh Kumar, learned counsel for the
respondent. Perused the materials on record.
3. Learned counsel for the petitioner contended that
the agreement of sale dated 22.07.2010 is already marked as
NC: 2024:KHC:5597
Ex.P1. When the matter was posted for defendant's evidence,
IA No.5 came to be filed seeking impounding the document.
The trial Court allowed the same without any basis. Therefore,
he prays for setting aside the impugned order by allowing the
petition.
4. Per contra learned counsel for the respondent
opposing the petition submitted that once it is brought to the
notice of the Court that the document produced before the
Court is not sufficiently stamped, it is to be impounded as
required under law. Even if the document is already marked,
the petitioner cannot avoid payment of stamp duty and penalty.
He placed reliance on the decision of this Court in
E.B.Basavaraju Vs. T.S.Somahekaraiah1 in support of his
contention that the trial Court rightly considered the application
filed by the defendant and passed the impugned order. There
are no merits in the petition. Accordingly, he prays for
dismissal of the petition.
5. The only contention raised by learned counsel for
the petitioner is that the agreement of sale on which he is
WP No.12966/2016 DD: 7.9.2022
NC: 2024:KHC:5597
relying on is already marked as Ex.P1. When the matter was
fixed for defendant's evidence, the application IA No.5 was filed
by the defendant seeking impoundment of the document and
therefore, the same is not permissible under law.
6. Learned counsel for the respondent has placed
reliance on the decision of E.B.Basavaraju (supra), where the
Co-ordinate Bench of this Court placing reliance on the earlier
decision of the Co-ordinate Bench of this Court in
Smt. Savithramma R.C. Vs. M/s. Vijaya Bank & Anr.2 held
in para No.9 as under;
"9. The question whether a document once
marked can be subject to scrutiny under Section 33
of the Act, is no longer res integra in view of the
judgment of the Co-ordinate Bench of this Court in
the case of Smt. Savithramma R.C. vs. M/s. Vijaya
Bank and another [ILR 2015 KAR 1984]. This Court
held while considering the said question as follows:
"If the Judge does not act under Section 34
of the Act, but the document is insufficiently
stamped and admitted in evidence, though
objection regarding admissibility cannot be raised
subsequently, that does not take away his
obligation to impound the document under
Section 33 of the Act. If the document is
insufficiently stamped and if the Court has
admitted such instrument in evidence without
collecting duty and penalty, then the Judge shall
proceed under Section 33 of the Act and impound
the document. After impounding the document,
he shall proceed under Section 37(2) of the Act
and shall send the impounded instrument in
(ILR 2015 KAR 1984)
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original to the Deputy Commissioner to be dealt
with under Section 39 of the Act. Therefore,
impounding the 6 document should not be
confused to admission of document without
objection regarding admissibility or on such
objection being taken after collecting the duty and
penalty."
7. It also referred to another decision of the Co-
ordinate Bench of this Court in K. Dinesh V. Kumaraswamy
& Ors.3, where it is held as under;
"10. Similarly, another Co-ordinate Bench in
the case of K. Dinesh vs. Kumaraswamy and others
[2010 (4) AIR KAR R. 647] has held as follows:-
"It is thus clear that any document,
produced in Court, may for sufficient
reason, be impounded and dealt with as
above. It may be before or even after a
document is admitted in evidence."
8. In view of the above, it is clear that the question
raised in the present case is already settled by various
decisions of this Court and therefore, I do not find any merits in
the petition. Accordingly, petition is dismissed.
Sd/-
JUDGE
PN
(2010 (4) AIR KAR R.647)
