M/S Gaumata Housing Pvt Ltd vs Shri Mahesh Chand Bansal
2022 Latest Caselaw 4232 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Writ Petition No. 3060/2015

M/s Gaumata Housing Private Limited Through Its Director
Rajeev Sharma Son Of Late Shri Prabhakar Sharma, aged 50
Years & resident of E-164, Shastri Nagar Main Road, Ajmer
                                                                  ----Petitioner
                                   Versus
Shri Mahesh Chand Bansal Son Of Shri Ram Narayan Bansal &
resident of-11, Shanti Villa, Near Government Girls College
Hostel, Haribhau Nagar (Extension), Pushkar Road, Ajmer.
                                                                ----Respondent

For Petitioner(s)        :     Mr.Mahesh Gupta
                               Mr.Manoj Bhardwaj
For Respondent(s)        :     Mr.Ishwar Jain



           HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                    Order

27/06/2022

The instant writ petition has been filed by the petitioner-

landlord challenging the order dated 21 st February, 2015, whereby

the application filed by the respondent under Section 65 of the

Indian Evidence Act, 1872 (for short "the Act of 1872") was

allowed.

Learned counsel for the petitioner Mr.Mahesh Gupta and

Mr.Manoj Bhardwaj submitted that the impugned order dated 21 st

February, 2015 is not legally sustainable on three counts :

(i) the photocopy of the document - rent note/lease deed could

not have been taken into consideration.

(ii) the alleged document was not a rent note and the same was

lease deed, which required compulsory registration.

(2 of 5) [CW-3060/2015]

(iii) the document-rent note/lease deed was not properly stamped.

Learned counsel for the petitioner submitted that the Court

below has wrongly understood the scope of Section 49 of the

Registration Act, 1908 (for short "the Act of 1908") and

further, failed to consider true import of Section 39 of the

Rajasthan Stamp Act, 1998 (for short "the Act of 1998").

Learned counsel submitted that the Court below was

required to examine as whether the application, filed by the

respondent under Section 65 of the Act 1872 to admit the

photocopy of the document, was to be permitted or not and as

such the document was not admissible in evidence.

Learned counsel for the petitioner submitted that the Court

below also wrongly placed reliance on a judgment passed by this

Court in the case of Shanker Lal & Ors. Vs.Civil Judge

(Jr.Div.) Shahpura & Ors. [2006(3) RLW 2049].

Learned counsel for the petitioner submitted that the

document in question will decide the main eviction application

itself and on admissibility of such document, the entire issue of

vacating the premises in question for change of use, is to be

decided and as such, the Court below could not have granted

permission to the respondent to file secondary evidence as

provided under Section 65 of the Act of 1872.

Learned counsel for the respondent - Mr.Ishwar Jain

submitted that bare reading of Section 49 of the Act of 1908

provides in its proviso that unregistered document affecting

immovable property and requiring registration can be produced as

evidence for any collateral transaction and as such, the Court

below has rightly come to the conclusion that the document,

which was sought to be produced in evidence as secondary

(3 of 5) [CW-3060/2015]

evidence was rightly permitted and non-registration of document,

alleged to be required to be registered, did not have much

bearing.

Learned counsel further submitted that as far as the

document, not being properly stamped or insufficiently stamped,

is concerned, the said issue has already been decided by this

Court in SB Civil Writ Petition No.12938/2015 (Harish

Minocha Vs. Daulat Ram) decided on 21st March, 2022.

Learned counsel submitted that this Court, after following

the judgment passed by the Division Bench in the case of

Sanjeev Bhardwaj Vs. Yogeshwar Swaroop Bhatnagar

[2020(3) RLW 2574] has reiterated the legal position by

permitting the parties to either pay proper stamp duty/deficit

stamp duty and if the same is not paid then the Civil Court can

send the impounded document to the Collector Stamp for taking

action, as per the provisions of the Act of 1998.

Learned counsel for the respondent submitted that since the

controversy itself has already been decided by the Division Bench

in the case of Sanjeev Bhardwaj (supra), the same direction can

always be followed by the Court below.

Learned counsel for the respondent has also placed reliance

on a judgment in the case of Vishnu Swaroop Vs. Civil Judge

(JD) & Ors. [2008(3) RLW 34], whereby unstamped document

has been held to be admissible in evidence for the collateral

purpose.

I have considered the submissions made by learned counsel

for the parties and perused the record of the case.

This Court finds that the Court below has allowed the

application, filed by the respondent, under Section 65 of the Act of

(4 of 5) [CW-3060/2015]

1872 to lead secondary evidence in respect of a document, nature

of which, is disputed by the petitioner, as the petitioner submitted

that the said document is not a rent note but a lease deed, which

required registration as well as payment of proper stamp duty.

This Court further finds that the Court below has allowed the

application of the respondent by holding that unstamped and

unregistered document, can be taken in secondary evidence for

the collateral purpose.

This Court finds that as far as registration of a document is

concerned, the power given under Section 49 of the Act of 1908 is

in respect of effect of non-registration of document, required to be

registered and as per the proviso provided to the said section,

such document can be taken in evidence for collateral purpose.

The objection of learned counsel for the petitioner about

non-registration of the document, is not legally sustainable.

The submission of learned counsel for the petitioner that the

document in question is not a rent note and the same, being a

lease deed, adduced in evidence, the same required registration

and proper stamp duty to be paid, this Court finds that the

Division Bench in the case of Sanjeev Bhardwaj (supra) had

framed specifically issue No.(iii) as whether on production of

unstamped document, Court is duty bound to determine the

stamp fee along with penalty, as per Section 35(1) of the Act or to

impound the same under Section 33 of the Act and send the same

to the Collector for determination of stamp duty and penalty in

order to make the document admissible?

This Court finds that the Division Bench of this Court came to

the conclusion that if any document/instrument is produced before

the Authority, which is not properly stamped, the power lies to

(5 of 5) [CW-3060/2015]

impound the same and it is required to be considered that if the

party is willing to pay the proper stamp duty or deficit stamp duty

after depositing the same, the Court is duty bound to admit the

instrument in evidence and if the party does not agree or is unable

to pay the amount of stamp/deficit stamp duty and the penalty,

the Court can send the same to the Collector for determination of

stamp duty and penalty, in order to make the document

admissible.

This Court has already considered the issue of non-payment

of proper stamp duty in the case of Harish Minocha (supra) and as

such, the present writ petition is decided by remitting the matter

back to the Civil Court for taking proper view about payment of

stamp duty as per law laid down by the Division Bench of this

Court in the case of Sanjeev Bhardwaj (supra).

With the aforesaid, the writ petition stands allowed. The

order dated 21st February, 2015 is set aside with the further

direction to the Court below to pass the order in accordance with

law.

(ASHOK KUMAR GAUR),J

Preeti Asopa/Bhavnesh/20

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