Saidali Haji vs Hassan Yaser Arafth
2021 Latest Caselaw 20402 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                &
                THE HONOURABLE MR.JUSTICE K. BABU
      FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                     OP (RC) NO. 205 OF 2017
 AGAINST THE ORDER DATED 18.11.2017 IN I.A.NO.1834 OF 2017 IN RCP
     49 OF 2014 OF MUNSIFF COURT, PARAPPANANGADI, MALAPPURAM
PETITIONER/PETITIONER:

          SAIDALI HAJI, AGED 61 YEARS
          S/O. ABDULKHADER HAJI,NALAKATH HOUSE,
          VADAKKUMBRAM AMSOM DESOM,TIRUR TALUK.
          BY ADVS.
          SRI.SAJU.S.A
          SRI.ASHWIN SATHYANATH
          SMT.M.R.MINI
          SMT.MEENA.A.
          SRI.VINOD RAVINDRANATH
          SRI.VINAY MATHEW JOSEPH


RESPONDENT/RESPONDENT:

          HASSAN YASER ARAFTH
          S/O. HASSAINAR, KUZHAMPURALATH HOUSE,KATTIPPARUTHI
          AMSOM, VALANCHERI DESOM,P.O. VALANCHERI, TIRUR TALUK -
          676 552.
          BY ADVS.
          SRI.JAMSHEED HAFIZ
          SMT.T.S.SREEKUTTY


     THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION         ON
01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(RC) No.205 OF 2017

                                        2

                                JUDGMENT

Anil K. Narendran, J.

The petitioner has filed R.C.P.No.49 of 2014 on the file of

the Rent Control Court (Munsiff), Parappanangadi, under

Section 5(1) of the Kerala Buildings (Lease and Rent Control)

Act, 1965, seeking fixation of fair rent of the petition scheduled

building occupied by the respondent herein. The petitioner has

filed this original petition under Article 227 of the Constitution

of India, seeking an order to set aside Ext.P6 order dated

18.11.2017 of the Rent Control Court, Parapppanangadi in

I.A.No.1834 of 2017 in R.C.P.No.49 of 2014. I.A.No.1834 of

2017 (Ext.P5) is an application filed by the landlord seeking an

order to receive certain documents in evidence. Along with that

application the landlord has also filed I.A.No.1832 of 2017

(Ext.P3) seeking an order to re-open the evidence in

R.C.P.No.49 of 2014 and I.A.No.1833 of 2017 (Ext.P4) seeking

an order to recall PW1.

2. The petitioner has also sought for an order directing

the Rent Control Court to allow Exts.P3, P4 and P5 applications

and also to stay all further proceedings in R.C.P.No.49 of 2014,

pending disposal of this original petition.

3. On 07.12.2017, when this original petition came up O.P.(RC) No.205 OF 2017

for admission, this Court admitted the matter and issued notice

by speed post to the respondent. This Court granted an interim

stay of all further proceedings in R.C.P.No.49 of 2014 on the file

of the Rent Control Court, Parappanangadi, for a period of two

weeks. The said interim order was not extended thereafter.

4. Heard the learned counsel for the petitioner-landlord

and also the learned counsel for the respondent-tenant.

5. The issue that arises for consideration in this original

petition is as to whether any interference is warranted on Ext.P6

order dated 18.11.2017 of the Rent Control Court,

Parappanangadi, in I.A. No.1834 of 2017 in R.C.P.No.49 of 2014

invoking the supervisory jurisdiction of this Court under Article

227 of the Constitution of India.

6. Section 33 of the Kerala Stamp Act deals with

examination and impounding of instruments. As per sub-section

(1) of Section 33, every person having by law or consent of

parties authority to receive evidence, and 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.

O.P.(RC) No.205 OF 2017

7. Section 34 of the Act provides that, instrument not

duly stamped inadmissible in evidence, etc. As per Section 34,

no instrument chargeable with duty shall be admitted in

evidence for any purpose by any person having by law or

consent of parties authority to receive evidence, or shall be

acted upon, registered or authenticated by any such person or

by any public officer, unless such instrument is duly stamped.

8. Section 37 of the Act provides how instruments

impounded are dealt with. As per sub-section (1) of Section 37,

when the person impounding an instrument under Section 33

has by law or consent of parties authority to receive evidence

and admits such instrument in evidence or when he is a

registering officer to register such instrument upon payment of

a penalty as provided by Section 34 or of duty as provided by

Section 36, he shall send to the Collector an authenticated copy

of such instrument, together with a certificate in writing, stating

the amount of duty and penalty levied in respect thereof, and

shall send such amount to the Collector or to such person as he

may appoint in this behalf. As per sub-section (2) of Section 37,

in every other case, the person so impounding an instrument

shall send it in original to the Collector.

9. Section 39 of the Act deals with Collector's power to O.P.(RC) No.205 OF 2017

stamp instruments impounded. Section 39 of the Act reads

thus;

"39. Collector's power to stamp instruments impounded.- (1) When the Collector impounds any instrument under Section 33, or receives any instrument sent to him under sub-section (2) of Section 33A or sub-section (2) of Section 37, not being an instrument chargeable with a duty of twenty paise or less, he shall adopt the following procedure:-

(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped or that it is not so chargeable, as the case may be;

(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of ten rupees; or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof whether such amount exceeds or falls short of ten rupees:

Provided that, when such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section. (2) Every certificate under clause (a) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.

(3) Where an instrument has been sent to the Collector O.P.(RC) No.205 OF 2017

under sub-section (2) of Section 37, the Collector shall, when he has dealt with it as provided by this Section, return it to the impounding officer.

10. Section 41 of the Act deals with endorsement of

instruments on which duty has been paid under Sections 34, 39

or 40. Section 41 reads thus;

"41. Endorsement of instruments on which duty has been paid under Sections 34, 39 or 40.- (1) When the duty and penalty, if any, leviable in respect of any instrument have been paid under Section 34, Section 39 or Section 40, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof and the name and residence of the person paying them.

(2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct: Provided that--

(a) no instrument which has been admitted in evidence upon payment of duty and a penalty under Section 34 shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate;

(b) nothing in this section shall affect Order XIII, Rule 9 O.P.(RC) No.205 OF 2017

of the First Schedule to the Code of Civil Procedure, 1908."

11. In Ramachandran K.P. v. District Registrar

(General) and others [2019 (3) KHC 136] a Division Bench

of this Court held that, the Statutory mandate under Section 33

of the Kerala Stamp Act is that, when any instrument

chargeable with duty is produced before the person having by

law or consent of parties authority to receive evidence, or every

person in charge of a public office, except an Officer of Police, or

when any such instrument is produced or comes in performance

of his functions, he shall impound the same, if it appears to him

that such instrument is not duly stamped. Therefore, it is

obligatory on the said officer to impound the insufficiently

stamped instrument, when such an instrument is produced

before him or it comes before him in the performance of his

function. The wording "is produced or comes in performance of

his functions, shall, if it appears to him that such instrument is

not duly stamped" are very significant and explicitly makes the

above view very clear. The expression 'shall' conveys a

command and thereby makes the provision mandatory as well

as obligatory. Therefore, when an insufficiently stamped

instrument comes to the notice of the court/empowered person, O.P.(RC) No.205 OF 2017

it is incumbent upon the court/ empowered person under

Section 33 of the Act to impound such instrument, irrespective

of the purpose for which it was produced before the court or the

party who produced it before them. Mere production or casual

appearance of insufficiently stamped instrument before the

court/empowered person, in the performance of functions is

sufficient for invoking the power of impounding, envisaged

under Section 33 of the Act. We make it clear that the prayer for

receiving or admitting the instrument is not required for

invoking the power to impound the same under Section 33 of

the Act. The expression 'impound' only means taking possession

of the document for being held in custody only, in accordance

with law. Therefore, it is obligatory on the court/empowered

person to take possession of the insufficiently stamped

instrument. Section 33 empowers the court/empowered person

to take possession of the insufficiently stamped instrument only,

and the court/ empowered person has no power to impose

penalty under Section 33, when the document is produced

before the court/ empowered person and is not sought to be

admitted in evidence. Accordingly, it can be safely concluded

that the composite order, impounding the instrument and

imposing penalty, when the insufficiently stamped instrument is O.P.(RC) No.205 OF 2017

produced before the court/empowered person but is not sought

to be admitted in evidence, is legally unsustainable as the

court/empowered person has no power to impose penalty under

Section 33 of the Act, when the instrument is not sought to be

admitted in evidence. It further follows that, the order

impounding the insufficiently stamped instrument alone is

legally sustainable and the court is bound to pass such an order

impounding the instrument only, when the instrument is not

sought to be admitted in evidence. It is well discernible on a

meticulous reading of Sections 33, 34 and 37 of the Act that the

power to impound and impose penalty are different and distinct

and conferred to the court/empowered person on different

circumstances and context. It is well discernible from Section 34

of the Act that no instrument chargeable with duty shall be

admitted in evidence or shall be acted upon unless the

instrument is duly stamped and such insufficiently stamped

instrument be admitted in evidence on payment of deficient

portion and penalty at 10 times of such portion. Thus, penalty

can be imposed only if the instrument is sought to be admitted

in evidence and no penalty can be imposed if the document is

not tendered to be admitted in evidence. Sub-section (1) and

(2) of Section 37 of the Act prescribes as to how the impounded O.P.(RC) No.205 OF 2017

instrument shall be dealt with. The procedure to be adopted is

prescribed under sub-section (1) and (2) of Section 37 of the

Act. As per sub-section (1) of Section 37, if the instrument is

admitted in evidence and penalty is imposed, the Registering

Officer shall, under Section 34, send an authenticated copy of

such instrument to the District Collector, together with the

certificate in writing, stating the amount of duty levied and shall

send such amount to the District Collector or to such person

appointed on that behalf. As per sub-section (2) of Section 37,

in every other case, the person so impounding an instrument

shall send it in original to the District Collector. It follows that

the instrument, which was impounded, but not admitted in

evidence, would fall under sub-section (2) of Section 37 of the

Act. In other words, the instrument, which was impounded

under Section 33, but not admitted in evidence, shall be sent to

the District Collector, as prescribed under sub-section (2) of

Section 37, for imposing penalty under clause (b) of sub-section

(1) of Section 39 of the Act.

12. In the instant case, in I.A.No.1834 of 2017 filed by

the landlord seeking an order to receive additional documents,

the Rent Control Court passed Ext.P6 order impounding the rent

agreement dated 15.04.2016 on the ground that it is O.P.(RC) No.205 OF 2017

insufficiently stamped. The Rent Control Court ordered that if

the parties want to mark the documents they shall pay the

deficit amount and penalty of Rs.2,11,200/-, failing which the

document will be sent to the District Collector under Section

37(2) of the Kerala Stamp Act. Along with I.A.No.1834 of 2017,

the landlord has filed I.A.No.1832 of 2017 seeking an order to

re-open the evidence in R.C.P.No.49 of 2014 and also

I.A.No.1833 of 2014 seeking an order to recall PW1. During the

course of arguments, the learned counsel on both sides would

submit that the Rent Control Court is yet to pass orders on

I.A.Nos.1832 of 2017 and 1833 of 2017.

13. Having considered the submissions made by the

learned counsel on both sides, this Court finds that I.A.No.1834

of 2017 in R.C.P.No.49 of 2014 requires reconsideration at the

hands of the Rent Control Court in the light of the law laid down

by the Division Bench of this Court in Ramachandran K.P.

[2019 (3) KHC 136].

In such circumstances, this original petition is disposed of

by setting aside Ext.P6 order dated 18.11.2017 of the Rent

Control Court, Parappanangadi, in I.A.No.1834 of 2017 in

R.C.P.No.49 of 2014 and directing the Rent Control Court to

reconsider I.A.No.1834 of 2017 and pass appropriate orders O.P.(RC) No.205 OF 2017

thereon, taking note of the statutory provisions referred to

hereinbefore and also the law laid down by the Division Bench of

this Court in Ramachandran, as expeditiously as possible, at

any rate, within a period of one month from the date of

production of a certified copy of this judgment. The Rent Control

Court shall also dispose of I.A.Nos.1833 of 2017 and 1832 of

2017 in R.C.P.No.49 of 2014 within the aforesaid time limit.

Sd/-

ANIL K. NARENDRAN JUDGE

Sd/-

K. BABU JUDGE SSK/01/10 O.P.(RC) No.205 OF 2017

APPENDIX OF OP (RC) 205/2017

PETITIONER'S EXHIBITS

EXHIBIT P1. TRUE COPY OF THE RENT CONTROL PETITION DATED 11.11.2014 IN R.C.P.49/2014 BEFORE THE RENT CONTROL COURT, PARAPPANANADI EXHIBIT P2. TRUE COPY OF THE COUNTER DATED 03.06.2015 IN RCP 49/14 FILED BY THE RESPONDENT BEFORE THE RENT CONTROL COURT, PARAPPANANADI EXHIBIT P3. TRUE COPY OF THE APPLICATION DATED 08.11.2017 IN I.A.1832/2017 IN RCP 49/14 ON THE FILE OF THE RENT CONTROL COURT, PARAPPANANADI EXHIBIT P4. TRUE COPY OF THE APPLICATION DATED 09.11.2017 IN I.A.1833/2017 IN RCP 49/14 ON THE FILE OF THE RENT CONTROL COURT, PARAPPANANADI EXHIBIT P5. TRUE COPY OF THE LIST OF DOCUMENTS DT.

09.11.2017 IN I.A.1834/2017 IN RCP 49/14 ON THE FILE OF THE RENT CONTROL COURT, PARAPPANANADI EXHIBIT P6. TRUE COPY OF THE ORDER DATED 18.11.2017 IN RCP 49/2014 OF THE RENT CONTROL COURT, PARAPPANANGADI