Rajasthan High Court

Harish Minocha vs Daulat Ram on 21 March, 2022

Bench: Ashok Kumar Gaur

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 12938/2015

Harish Minocha S/o Shri Prithvi Raj Minocha, 559 C-Scheme No.
2, Lajpat Nagar, Alwar Raj.
                                                                  ----Petitioner
                                   Versus

Daulat Ram S/o Shri Gokul Chand, 109, Adarsh Colony, Daudpur,
Distt. Alwar Raj.
                                                                ----Respondent

For Petitioner(s)          :   Mr.Vigyan Shah, Adv.



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                    Order

21/03/2022

The present writ petition has been filed by the petitioner-

plaintiff challenging the order dated 09.07.2015, whereby the

application filed by the respondent-defendant dated 27.05.2015

has been allowed and the present petitioner has been restrained

from making the agreement to sale dated 22.11.2008 as Exhibit

on the ground of not properly stamped.

This Court finds that initially notices were issued by this

Court on 29.02.2016 and the Court below was restrained from

passing the final order.

This Court finds that notices were issued to the respondent-

defendant from time to time and the office report dated

13.10.2017 shows that notices on sole respondent-defendant were

served on him on basis of the report of the process server as the

respondent-defendant was present at his address but he refused

to accept the notices and then notices were affixed on his house.

(2 of 6) [CW-12938/2015]

This Court finds that service was complete and when the

petitioner moved an application for early disposal of the writ

petition at orders stage, notices were again issued.

Office report shows that the notices were again served on

the respondent but he failed to appear before this Court.

This Court on 27.01.2022 recorded a detailed order-sheet

and found that in spite of service, the respondent was avoiding

appearance before this Court and in the interest of justice, notices

were again issued to the respondent through his counsel, who was

appearing before the Trial Court.

This Court, specifically observed that matter may be listed

for final disposal and if the respondent did not appear or make

himself available to argue the matter, the case was to be decided

on the basis of record in accordance with law.

This Court finds that the notices were again issued to the

District Judge, Alwar for effecting service upon the respondent and

office report shows that the notices were sent to the respondent

but till date no person has appeared.

The previous order-sheets of this Court on two occasions had

shown sufficient service on the respondent-defendant but he has

not chosen to appear and as such this Court is left with no other

option except to decide the present writ petition.

This Court also finds that the respondent, in spite of service,

does not appear before the Court, no leniency can be given to

such litigant who intends to avoid the appearance in High Court

and is taking things for granted.

Learned counsel for the petitioner submitted that the

plaintiff-petitioner had filed a suit for specific performance of

agreement to sale dated 22.11.2008 for Rs.12,01,001/- in relation

(3 of 6) [CW-12938/2015]

to the property mentioned in the agreement to sale, which was

owned by the respondent-defendant.

Learned counsel submitted that the respondent-defendant

had filed a written statement along-with an application under

Order 7 Rule 11 CPC to dismiss the present suit for specific

performance on the ground that the agreement to sale dated

22.11.2008 was not admissible in evidence, as the same was not

properly stamped.

Learned counsel submitted that the aforesaid application of

the defendant was dismissed by the Trial Court dated 21.11.2014

with liberty to the respondent-defendant to raise the objections at

the time of petitioner's-plaintiff evidence.

Learned counsel for the petitioner submitted that when the

suit was fixed for petitioner-plaintiff evidence, respondent-

defendant again moved an application dated 27.05.2015 to

restrain the petitioner from exhibiting the agreement to sale dated

21.11.2014.

Learned counsel submitted that the petitioner filed reply to

the application stating therein that the document in question was

properly stamped and the same was admissible in evidence.

Learned counsel submitted that the Trial Court vide its

impugned order dated 09.07.2015 came to the conclusion that the

document in question was not properly stamped and the same

cannot be exhibited under Section 35 of the Stamp Act, 1899 (in

short 'the Act of 1899').

Learned counsel for the petitioner submitted that the Court

below has committed legal error in allowing the application filed by

the respondent and he further submitted that if the Trial Court

found agreement to sale was not duly stamped then Trial Court

(4 of 6) [CW-12938/2015]

should have applied the process of section 33 of the Indian Stamp

Act, 1899 and Section 37 of the Rajasthan Stamp Act, 1998.

Learned counsel submitted that the Court below has also not

considered the scope of Section 33 of the Act of 1899.

Learned counsel submitted that Section 33 of the Act of 1899

provides that a person, who has Authority to receive evidence,

before whom the instrument is produced and if it appeared to the

Authority that the instrument is not duly stamped, he has power

to impound the document and further as per sub-section (2) of

Section 33 of the Act of 1899 after impounding the document, the

Authority himself can direct to pay the deficit stamp duty or send

the same to the Collector Stamp for determining the actual

payment of stamp duty on the instrument concerned.

Learned counsel further submitted that this Court in the case

of Sanjeev Bhardwaj Vs. Yogeshwar Swaroop Bhatnagar

reported in 2020 (3) RLW 2574 has considered the scope of

Sections 17, 35 & 49 of the Stamp Act, 1899 and further has also

considered the similar provisions contained in Rajasthan Stamp

Act, 1988.

Learned counsel for the petitioner submitted that the Court

below has wrongly allowed the application of the respondent in

spite of settled proposition of law.

I have heard the submissions made by learned counsel for

the petitioner and perused the material available on record.

This Court finds that the Division Bench in the case of

Sanjeev Bhardwaj Vs. Yogeshwar Swaroop Bhatnagar

(supra) has decided the reference, which was made by the Single

Bench of this Court and three questions were framed by the

Division Bench, which are reproduced hereunder:-

(5 of 6) [CW-12938/2015]

"(i) Whether the judgments rendered by two different Single Bench of this Court in the case of Smt. Indu vs. Narsingh Das & Ors., 2013(5) WLC (Raj.) 615 reported in 2013(2) RLW 1239 and Prembai vs. Khurshid Bano & Ors., 2014(3) WLC (Raj.) 221 relying upon the case of Avinash Kumar Chauhan vs. Vijay Krishna Mishra, 2009 (2) SCC 532, lay a correct law without taking note of judgment rendered by a Constitution Bench of Supreme Court in Javer Chand & Ors. vs. Pukhraj Surana, AIR 1961 SC 1655.

(ii) Whether judgment rendered by another Single Bench of this Court in the case of Lrs of Deepchand vs. Mahaveer Chand & Anr., 2015 (2) WLN 106, and the view expressed by Full Bench of Madhya Pradesh High (3 of 30) [CWs-15760/15 & 6437/13] Court in the case of Balkrishna Bihari Lal vs. Board of Revenue M.P. and Others, AIR 1970 MP 74, has to prevail?

(iii) 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 after deciding the reference and

considering the scope of various provisions of the Act of 1899 and

Rajasthan Stamp Act, 1998, the Division Bench of this Court has

come to the conclusion that if any document/instrument is

produced before the Authority, which is not properly stamped, the

power lies to impound the same and it is required to be

(6 of 6) [CW-12938/2015]

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 or if the party does not

agree or is unable to pay the amount of stamp duty/deficit stamp

duty and the penalty, the Court can send the same to the Collector