Karnataka High Court

Sri.C.P.Selvaraj vs Sri.K.M.Rajendran on 13 October, 2025

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

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                                                    WP No. 2383 of 2023
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                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 13TH DAY OF OCTOBER, 2025

                                         BEFORE

                     THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

                       WRIT PETITION NO. 2383 OF 2023 (GM-CPC)

              BETWEEN:

              SRI C.P. SELVARAJ
              AGED ABOUT 72 YEARS
              S/O SRI COIL PILLAI
              R/AT NO.718, 'IMMANUEL HOUSE'
              EX-SERVICE MEN BOLONY
              BANASWADI, BENGALURU - 560 043.
                                                             ...PETITIONER
              (BY SRI LOKESH R, ADV.)
              AND:

              SRI K.M. RAJENDRAN
              S/O SRI M. KRISHNAMURTHY
              AGED ABOUT 63 YEARS
              RESIDING AT NO.3
              1ST MAIN, C K C GARDEN
Digitally
signed by     BENGALURU - 560 027.
NANDINI M S                                                 ...RESPONDENT
Location:
HIGH COURT    (BY SRI RAJADITHYA SADASIVAN, ADV.)
OF
KARNATAKA

                    THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
              CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD
              02.01.2023 VIDE ANNX-A PASSED ON MEMO FILED BY THE
              RESPONDENT IN O.S.NO.8000/2012 PASSED BY THE XVIII
              ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH 10),
              BENGALURU VIDE ANNX-A.

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

              CORAM:    HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
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                                          WP No. 2383 of 2023


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                         ORAL ORDER

1. This writ petition under Articles 226 and 227 of the

Constitution of India is filed by defendant no.1 with a prayer to

quash the order dated 01.09.2022 and the order dated

02.01.2023 passed by the Court of XVIII Addl. City Civil and

Sessions Judge, Bengaluru in O.S.No.8000/2012.

2. Heard the learned counsel appearing for the parties.

3. The respondent herein had filed O.S.No.8000/2012

before the jurisdictional civil Court seeking the relief of

declaration, possession and injunction. In the said suit,

defendant no.1, who is the petitioner herein had filed written

statement contending that the original owners of the suit

schedule property namely Smt. C. Papamma, Smt.

Theresamma, Sri J. Mariyappa and Sri J. Rayappa, who were in

joint possession and enjoyment of suit schedule property had

executed agreement for sale dated 26.08.1987 in his favour

after having received the entire sale consideration and also had

thereafter executed registered General Power of Attorneys

dated 17.02.1988 and 09.05.1988 respectively in his favour.

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4. The aforesaid registered General Power of Attorneys

dated 17.08.1988 and 09.05.1988 were marked as Ex.D31 and

Ex.D32 during the course of evidence of defendant no.1(DW.1).

Subsequently, a memo was filed by the plaintiff raising

objection for marking Ex.D31 and Ex.D.32 on the ground that

the said documents were not properly stamped. The said memo

was rejected by the Trial Court, which was challenged by the

plaintiff before this Court in W.P.No.14887/2021. This Court

vide order dated 13.04.2022 had allowed the said writ petition

and the matter was remanded to the Trial Court to consider the

objections raised by the plaintiff afresh in the background of

relevant provisions of the Karnataka Stamp Act, 1957 (for

short, the 'Act'). Thereafter, vide order dated 01.09.2022, the

Trial Court had directed defendant no.1 to produce the original

of General Power of Attorneys dated 17.02.1988 and

09.05.1988. In spite of such an order, defendant no.1 failed to

produce the original of the aforesaid General Power of

Attorneys and therefore vide the order impugned, the Trial

Court has expunged Ex.D.31 and Ex.D.32 General Power of

Attorneys dated 17.02.1988 and 09.05.1988 respectively and

being aggrieved by the aforesaid orders dated 01.09.2022 and

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02.01.2023 passed by the Trial Court, the petitioner is before

this Court.

5. Learned counsel for the petitioner having reiterated

the grounds urged in the petition submits that, since Ex.D.31

and Ex.D.32 are marked before the Trial Court without

objections, the plaintiff could not have raised any objection

subsequently, with regard to admissibility of the said

documents on the ground that the documents were

insufficiently stamped and he has placed reliance on Section 35

of the Act in support of his arguments. He submits that reading

of General Power of Attorneys would go to show that, no

consideration has been paid under the said documents and

therefore stamp duty as provided under Article 41(e) of the Act

would not get attracted. Accordingly, he prays to allow the

petition.

6. Per contra, learned counsel for respondent submits

that the Hon'ble Supreme Court in the case of G.M. SHAHUL

HAMEED V. JAYANTHI R. HEGDE reported in 2024 INSC

493 has held that, notwithstanding Section 35 of the Act, if it is

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found that instrument is insufficiently stamped, the Court, in

exercise of its inherent power under Section 151 of CPC can

still direct the party to pay the deficiency of stamp duty and

penalty as provided under Sections 33 and 34 of the Act. He

submits that the Coordinate Bench of this Court in the case

SURESH BHATIA V. GULLAMMA in W.P.No.45100/2011

DISPOSED OF ON 05.03.2014 in almost identical

circumstances has held that when a General Power of Attorney

is executed in favour of the party for consideration received

under agreement for sale executed by the very same party,

then such a power of attorney is required to be stamped as

provided under Article 41(e) of the Act. Accordingly, he prays

to dismiss the petition.

7. According to defendant no.1, who is the petitioner

herein the original owners of the suit schedule property had

executed an agreement for sale in his favour on 26.08.1987

after receiving the entire sale consideration and subsequently

on 17.02.1988 and 09.05.1988 had executed two separate

registered General Power of Attorneys in his favour. The said

General Power of Attorneys dated 17.02.1988 and 09.05.1988

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are marked as Ex.D.31 and Ex.D.32 respectively without there

being any objection raised for marking the said document on

behalf of the plaintiff. Subsequently, the plaintiff had raised an

objection stating that since consideration was paid under the

agreement for sale, General Power of Attorneys which were

executed for consideration received under agreement for sale in

favour of defendant no.1 were required to be stamped as

provided under Article 41(e) of the Act and considering the said

objection, since the petitioner had got marked the certified

copy of the aforesaid General Power of Attorneys as Ex.D.31

and Ex.D.32, the Trial Court vide its order dated 01.09.2022

had called upon the petitioner to produce the original of

Ex.D.31 and Ex.D.32. In spite of granting sufficient time to the

petitioner, he had failed to produce the original of Ex.D.31 and

Ex.D.32 and it is under these circumstances, the Trial Court has

passed the order dated 02.01.2023 placing reliance on the

judgment of the Hon'ble Supreme Court in the case of

HARIOM AGARWAL V. PRAKASH CHAND MALVIYA

reported in AIR 2008 SC 166, and has expunged the aforesaid

two General Power of Attorneys, which were marked as Ex.D.31

and Ex.D.32.

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8. The Coordinate Bench of this Court in the case of

SURESH BHATIA (supra) wherein the defendants had

executed agreement for sale and also the General Power of

Attorneys in favour of the plaintiff in respect of the property

which was subject matter of the agreement for sale, which was

executed for consideration, in paragraph No.10 has observed as

follows:

"10. The power of Attorney, agreement of sale, affidavit, confirmation deed, receipts have all come into existence simultaneously at the same point of time and as a part of same transaction. They have come into existence contemporaneously. Therefore the Power of attorney cannot be read in isolation. On a combined reading of all these documents, it can be safely said that the power of attorney is executed by the defendants in favour of the plaintiff's brother for consideration received under the agreement of sale from the plaintiff. Therefore, the order of the Trial Court cannot be found fault with".

9. In the present case agreement for sale dated

26.08.1987 was executed after having received the entire sale

consideration and thereafter the General Power of Attorneys

dated 17.02.1988 and 09.05.1988, which are marked as

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Ex.D.31 and Ex.D.32 were executed in favour of petitioner.

Therefore, it is apparent that General Power of Attorneys

Ex.D31 and Ex.D32 were executed in favour of the petitioner

for consideration received by the original owners of the suit

schedule property under the agreement for sale dated

26.08.1987. In view of law laid down by this Court in the case

of SURESH BHATIYA (supra), the aforesaid General Power of

Attorneys Ex.D.31 and Ex.D.32 therefore becomes liable to be

stamped as provided under Article 41(e) of the Act. Under

these circumstances, the arguments addressed on behalf of the

petitioner that since no consideration was paid under the

General Power of Attorneys, the said instruments are not liable

to be stamped as provided under Article 41(e) of the Act is

liable to be rejected.

10. Learned counsel for the petitioner has raised further

contention that since the documents are already marked as

Ex.D.31 and Ex.D32, in view of Section 35 of the Act, the

respondent - plaintiff could not have raised a objection before

the Trial Court about admissibility of the documents on the

ground that they are not properly stamped.

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11. Section 35 of the Act provides that, where an

instrument has been admitted in evidence such admission shall

not, except as provided in Section 58, be called in question at

any stage of the same suit or proceedings on the ground that

the instrument has not been duly stamped. The power to

impound an instrument which is not duly stamped is provided

under Section 33 of the Act.

12. A reading of Section 33 of the Act makes it very

clear that whenever a instrument is produced or comes before

a person in charge of a public office, he shall examine the said

instrument and if the said instrument is not duly stamped

impound the same. A reading of Section 33(2) of the Act makes

it very clear that, such an examination is necessary in order to

ascertain whether the instrument is stamped of the value and

description required by the law in force in the State when such

instrument was executed or first executed.

13. Section 34 of the Act provides that instruments not

duly stamped are inadmissible in evidence. Therefore,

application of mind at the time of marking the document with

regard to sufficiency of stamp duty by the Court becomes very

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necessary and merely for the reason that parties have not

objected for marking of an instrument duly stamped cannot

takeaway the right of the Court to subsequently call upon the

parties to pay the deficit stamp duty and penalty in the event

such an instrument is found to be not properly stamped.

14. The Hon'ble Supreme Court in the case of G.M.

SHAHUL HAMEED (supra), under similar circumstances had

raised a substantial question of law for consideration, which

reads as follows:

Whether upon admission of an instrument in evidence and its marking as an exhibit by a court (despite the instrument being chargeable to duty but is insufficiently stamped), such a process can be recalled by the Court in exercise of inherent powers saved by Section 151 of the Code of Civil Procedure for the ends of justice or to prevent abuse of the process of the Court?

15. In the said judgment after having referred to

Sections, 33, 34, 35 and 58 of the Act, in paragraph Nos.18 to

22, the Hon'ble Supreme Court has observed as follows:-

"18. On the face of such an order, it does not leave any scope for doubt that on the date the GPA was

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admitted in evidence and marked as an exhibit, the Trial Court did not deliberate on its admissibility, much less applied its judicial mind, resulting in an absence of judicial determination. In the absence of a 'decision' on the question of admissibility or, in other words, the Trial Court not having 'decided' whether the GPA was sufficiently stamped, Section 35 of the 1957 Act cannot be called in aid by the Respondent. For Section 35 to come into operation, the instrument must have been "admitted in evidence upon a judicial determination. The words "judicial determination" have to be read into Section 35. Once there is such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by Section 35. However, in a case of "no judicial determination", Section 35 is not attracted.

19. In the light of the aforesaid reasoning of the Trial Court of admitted failure on its part to apply judicial mind coupled with the absence of the counsel for the Appellant before it when the GPA was admitted in evidence and marked exhibit, a factor which weighed with the Trial Court, we have no hesitation to hold that for all purposes and intents the Trial Court passed the order dated 19th October, 2010 in exercise of its inherent power saved by Section 151, Code of Civil Procedure, to do justice as well as to prevent abuse of the process of court, to which inadvertently it became a party by not applying judicial mind as required in terms of Sections 33 and 34 of the 1857 Act. We appreciate

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the approach of the Trial Court in its judicious exercise of inherent power.

20. Reference to Section 58 of the 1957 Act by learned Counsel for the Respondent is without substance. The clear language of Section 58 refers to a situation, where an order is passed admitting an instrument in evidence as duly stamped or as one not requiring a stamp, for its attraction. As evident from a bare reading of the order dated 19th October, 2010, the Trial Court did neither hold the GPA as duly stamped or as not requiring a stamp and, therefore, its applicability was not attracted.

21. We may not turn a blind eye to the fact that the revenue would stand the risk of suffering huge loss if the courts fail to discharge the duty placed on it per provisions like Section 33 of the 1957 Act. Such provision has been inserted in the statute with a definite purpose. The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the state.

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The courts ought to ensure that compliance with all substantive and procedural requirements of a statute akin to the 1957 Act are adhered to by the interested parties. This duty of the court is paramount, and any deviation would set a detrimental precedent, eroding the integrity of the legal system. Thus, the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the Rule of law.

22. Having regard to the aforesaid discussion, we answer the substantial question in the affirmative. Finding no error in the order of the Trial Court dated 19th October 2010, we set aside the impugned order of the High Court dated 26th September, 2011, meaning thereby that the order of the Trial Court is restored. Since proceedings of the civil suit remained stalled because of pendency of this appeal, we expect the Trial Court to proceed expeditiously and in accordance with law."

16. In the case on hand, learned trial Judge while

marking Ex.D.31 and Ex.D32 has not applied its mind with

regard to payment of stamp duty on the said documents and

therefore there was no judicial determination about sufficiency

of stamp duty paid on the documents. If only a document is

admitted in evidence upon a judicial determination, Section 35

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of the Act gets attracted. Therefore, the contention urged on

behalf of the petitioner that in view of Section 35 of the Act,

since the documents were already admitted in evidence as