Karnataka High Court
Sri. Suresha vs Smt. Gayatri. H. M on 13 June, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION NO. 31814 OF 2019 (GM-CPC)
BETWEEN:
SRI. SURESHA
S/O SRI. KALEGOWDA
AGED ABOUT 53 YEARS
R/O KONGALABEEDU
KASABA HOBLI
HOLENARASIPURA TALUK
HASSAN-573 211
...PETITIONER
(BY SRI.P.K.SRIKARA, ADVOCATE)
AND:
1. SMT. GAYATRI. H.M.
W/O SRI SRINIVAS M.H.,
D/O MADHUSHETTY
Digitally AGED ABOUT 41 YEARS
signed by R/O MARIGOWDA ROAD
SUVARNA T
6TH CROSS
Location: MANDYA-571 401
HIGH
COURT OF 2. SRI M.VISHVESHWARA
KARNATAKA S/O SRI.MADHUSHETTY
AGED ABOUT 39 YEARS
R/O #4, HALE SLUMBOARD
HOLENARASIPURA
HASSAN-573 211
3. SMT.HEMAVATHI
W/O SRI.GOPAL
AGED ABOUT 36 YEARS
R/O #2108
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OPPOSITE TO TARAKARI SHOP
KALKUNIKE CIRCLE
HUNASURU TALUK
MYSORE-571 105
4. SRI.BAIRASHETTY @ KARIRAJANNA
S/O SRI MADHUSHETTY
C/O YOGESHWARA M.,
R/O GANIGARA BIDI
NEXT TO SHANIDEVA TEMPLE
BEGURU ROAD
CHANNARAYAPATNA-573 116
5. SRI H.M.ARUNKUMAR
S/O SRI MADHUSHETTY
AGED ABOUT 30 YEARS
R/O #4, HALE SLUMBOARD
HOLENARASIPURA
HASSAN-573 211
...RESPONDENTS
(R1-R5 SERVED AND UNREPRESENTED)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER
DATED 27.06.2019 PASSED BY THE CIVIL JDUGE,
HOLENARSIPURA IN O.S.NO.153/2017 (VIDE ANENXURE-A).
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED ON 21.01.2025, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
Aggrieved by the order passed in I.A.No.XV in
O.S.No.153/2017 dated 27.06.2019 by the Civil Judge and JMFC,
Holenarasipura, the petitioner/plaintiff is before this Court.
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2. The plaintiff had filed O.S.No.153/2017 on the file of
the Civil Judge and JMFC, Holenarasipura, seeking a decree of
specific performance of contract dated 10.11.2014 by directing
the defendants to execute registered sale deed in favour of the
plaintiff in respect of the suit schedule property by receiving the
balance sale consideration amount of Rs.1,00,000/-. In the
plaint, it is contended that the mother of the defendants was
the sole owner of the property and an Agreement of Sale dated
10.11.2014 was executed between the plaintiff and the mother
of the defendants wherein the 2nd defendant is one of the
signatory as witness to the document which has been registered
before the Sub-Registrar office at Holenarasipura. The sale
consideration mentioned in the agreement is Rs.2,00,000/- out
of which an amount of Rs.1,00,000/- was paid by way of
Cheque No.156481. Thereafter, the mother of the defendants
passed away and when the plaintiff had requested the
defendants to execute the Sale Deed, the defendants have
failed to execute the same. Hence, the plaintiff had filed the
suit.
3. It is the case of the plaintiff that the trial Court has
framed issues on 03.10.2018 and the matter was posted for
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evidence of the plaintiff on 05.11.2018. The plaintiff had
entered the witness box on 05.11.2018 and the documents that
are produced by the plaintiff including the 2014 Agreement
were admitted in evidence and was marked as Exhibit P-1 and
it is the case that the respondents did not raise any objections
on any of the documents marked into evidence. On 20.12.2018,
the plaintiff prayed time to lead further evidence. Subsequently
on 05.02.2019, the plaintiff marked additional documents and
the matter was posted to 19.03.2019 for cross-examination of
PW-1.
4. Thereafter, on 19.03.2019, defendant Nos.1 and 5 filed
an application under Sections 33 and 34 of the Karnataka
Stamp Act, 1957 read with Section 151 CPC seeking
impounding of the 2014 Agreement for collection of duty and
penalty. The plaintiff had filed his objections to the said
application and contended that since the 2014 Agreement has
already been marked as an exhibit, there is no question of
paying duty and penalty and the application is filed only to drag
on the proceedings. The application came to be allowed by way
of the impugned order and the plaintiff is before this Court
questioning the same.
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5. This Court has perused the order impugned. The trial
Court had observed that it is the specific case of the defendants
that after the document is marked in evidence, it was noticed
that the possession of the property was handed over to the
plaintiff under an agreement of sale and further on reference to
the payment of duty only a sum of Rs.200/- has been collected
apart from scanning fee and other fee and sub registrar ought
to have collected the amount namely the stamp duty on the
market value of the property. On that ground, the defendant
prays Ex.P1 to be impounded for collection of proper duty and
penalty as envisaged under Section 33 and 34 of Karnataka
Stamp Act. The trial Court had also observed that the market
value of the property mentioned in the agreement is
Rs.2,00,000/- but the same is written on stamp paper of
Rs.6/-. As per Article 5(e)(i) read with Article 20(III) of the Act,
the proper duty payable would be eight percent of the
consideration mentioned in the agreement. Eight percent of
Rs.2,00,000/- would be Rs.16,000/-. The trial Court had come
to the conclusion that the proper duty payable is Rs.16,000/-.
Further, the trial Court had observed that the suit agreement is
insufficiently stamped as contended by the defendants and held
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that the plaintiff has already paid stamp duty of Rs.706/- and
the plaintiff ought to have paid sufficient stamp duty on the
market value i.e., 8% on Rs.2,00,000/- which comes to
16,000/- minus Rs.706/-, the plaintiff has to pay Rs.15,294/-.
The ten times penalty would be Rs.1,52,940/- (Rs.15,294x10)
and Rs.1,52,940/- plus Rs.15,294/- would be duty and penalty
and it comes to Rs.1,68,234/-. Therefore, the trial Court had
directed the plaintiff to pay an amount of Rs.1,68,234/- towards
deficit stamp duty and ten times penalty and accordingly,
application was allowed.
6. Learned counsel appearing for the petitioner/plaintiff
submits that the respondents/defendants has raised no
objections at the time of marking the agreement on 05.11.2018
or on the next two occasions when the case was listed, i.e., on
20.12.2018 and on 05.02.2019. Once an instrument has been
admitted in evidence without there being objection at the time
of admitting the said instrument in evidence, then such
admission shall not, except as provided in Section 58 of the Act,
be called in question at any stage of the same suit or
proceedings on the ground that the instrument has not been
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duly stamped. It is submitted that only with an intention to
drag on the proceedings, the application has been filed.
7. Learned counsel had relied on the judgment of the
Hon'ble Apex Court in case of Javer Chand and Others Vs.
Pukhraj Surana1.
"In our opinion, the High Court misdirected
itself, in its view of the provisions of s. 36 of the
Stamp Act. Section 36 is in these terms:-
"Where an instrument has been admitted in
evidence, such admission shall not, except
as provided in section 61, be called in
question at any stage of the same suit or
proceeding on the ground that the
instrument has not been duly stamped."
That section is categorical in its terms that when
a document has once been admitted in evidence,
such admission cannot be called in question at any
stage of the suit or the proceeding on the ground
that the instrument had not been duly stamped.
The only exception recognised by the section is the
class of cases contemplated by s. 61, which is not
material to the present controversy. Section 36
does not admit of other exceptions. Where a
question as to the admissibility of a document is
raised on the ground that it has not been stamped,
or has not been properly stamped, it has to be
decided then and there when the (1) I.L.R. [1953]
Raj. 833. document is tendered in evidence. Once
the Court, rightly or wrongly, decides to admit the
document in evidence, so far as the parties are
concerned, the matter is closed. Section 35 is in
the nature of a penal provision and has far-
reaching effects. Parties to a litigation, where such
a controversy is raised, have to be circumspect and
the party challenging the admissibility of the
document has to be alert to see that the document
is not admitted in evidence by the Court. The Court
has to judicially determine the matter as soon as
1
AIR 1961 SC 1655
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the document is tendered in evidence and before it
is marked as an exhibit in the case. The record in
this case discloses the fact that the hundis were
marked as Exs. P. 1 and P. 2 and bore the
endorsement 'admitted in evidence' under the
signature of the Court. It is not, therefore, one of
those cases where a document has been
inadvertently admitted, without the Court applying
its mind to the question of its admissibility. Once a
document has been marked as an exhibit in the
case and the trial has proceeded all along on the
footing that the document was an exhibit in the
case and has been used by the parties in
examination and cross-examination of their
witnesses, s. 36 of the Stamp Act comes into
operation. Once a document has been admitted in
evidence, as aforesaid, it is not open either to the
Trial Court itself or to a Court of Appeal or revision
to go behind that order. Such an order is not one of
those judicial orders which are liable to be
reviewed or revised by the same Court or a Court
of superior jurisdiction."
8. Learned counsel had also relied on the judgment of the
Hon'ble Apex Court in case of Gangappa and Another Vs.
Fakkirappa2.
"18. The above view of the Karnataka High Court
that there is no discretion vested with the
authority impounding the document in the matter
of collecting duty under Section 33, is correct. The
word used in the said proviso is 'shall'. Sections 33
and 34 clearly indicate that penalty imposed has to
be 10 times. The Division Bench of the Karnataka
High Court in Digambar Warty and others (supra)
has rightly interpreted the provisions of Sections
33 and 34 of the Act. We, thus, are of the view that
the High Court in the impugned judgment did not
commit any error in relying on the judgment of the
Division Bench in Digambar Warty and others
(supra). We thus has to uphold the above view
expressed in the impugned judgment."
2
(2019) 3 SCC 788
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9. Learned counsel has placed reliance on the judgment of
the Division Bench of this Court in the case of Digambar
Warty and Others Vs. The District Registrar, Bangalore
Urban District and Another3.
"36. This provision refers to the power of the
Civil Court which admits the documents in
evidence. The main Section is couched in the
negative. Unless the instrument is duly stamped, it
is inadmissible in evidence. As an exception, the
proviso provides for payment of duty and penalty.
In the matter of collection of duty and penalty no
discretion is vested with the authority admitting
such an instrument in evidence. The duty payable
on the instrument is prescribed by statute.
Therefore, there is no question of any discretion
being vested with the authority impounding the
document in the matter of collecting the duty. Once
the duty payable is ascertained from the statute,
no discretion is vested with the authority admitting
the document in evidence, in the matter of
imposition of duty and penalty. The word used in
the said proviso is 'shall'. It is mandatory.
However, Section 35 makes it clear, that where an
instrument has been admitted in evidence without
there being objection at the time of admitting the
said instrument in evidence, then such admission
shall not, except as provided in Section 58, be
called in question at any stage of the same suit or
proceeding on the ground that the instrument has
not been duly stamped. Section 58 deals with the
power of the Appellate Court to review the finding
recorded by the original Court under Section 34 of
the Act, either suo motu or on the application of
the Deputy Commissioner. Section 36 of the Act
deals with admission of improperly stamped
instrument. The State Government may make rules
providing that, where an instrument bears a stamp
of sufficient amount but of improper description, it
may, on payment of the duty with which the same
is chargeable, be certified to be duly stamped, and
3
ILR 2013 KAR 2099
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any instrument so certified shall then be deemed
to have been duly stamped as from the date of its
execution.
38. The reason is obvious. Generally, it is the
Civil Court which receives the instrument in
evidence. Admission of instrument in evidence is
not proof of the said instrument. If the execution
of the instrument is denied by the executant or the
opposite party, burden is cast on the person
producing the said instrument to prove that the
instrument was executed in accordance with law.
He may have to examine the attesting witnesses if
there is any, or he may request the Court to
compare the signature found on the said
instrument with the admitted signatures in the
case or he may request for sending the said
instrument containing the signature for the opinion
of the handwriting expert. Therefore the original
document, after it being impounded and the party
paying the duty and penalty cannot be sent to the
Deputy Commissioner, the law provides for a
authenticated copy of such an instrument being
sent to the Deputy Commissioner. However, in all
other cases, it is the original of the document
impounded which is to be sent to the Deputy
Commissioner. The object being, the said provision
should not come in the way of speedy disposal of
cases before the Court.
39. Section 38 of the Act deals with the power of
the Deputy Commissioner to refund the penalty
paid under Sub- section (1) of Section 37. When a
copy of an instrument is sent to the Deputy
Commissioner under Sub-section (1) of Section 37,
he may, if he thinks fit, refund any portion of the
penalty in excess of five rupees which has been
paid in respect of such instrument. The reason
being, when a person receiving the evidence
impounds the document and collects the duty
under Section 34 of the Act, which in most of the
cases, is the Civil Court, the time of the Court
should not be wasted in deciding, whether it is a fit
case where penalty of ten times the duty is to be
levied or a case is made out for imposition of lesser
penalty. Therefore, the Legislature consciously has
used the word, 'shall' taking away any discretion in
the Civil Court in the matter of imposition of
penalty equal to ten time the duty payable.
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However, the Civil Court after impounding the
document, collecting the duty and penalty, is under
a statutory obligation to send it to the Deputy
Commissioner under Sub- section (1) of Section
37. Therefore, when such an instrument is so sent
to the Deputy Commissioner, he has been
conferred the power to reduce the penalty already
paid before the Civil Court. One of the reasons why
such a discretion is not vested with the Civil Court
is, it is the revenue authorities who are more
concerned with the collection of revenue, and that
is not the job of the Civil Courts. However, if a
document which is not stamped or insufficiently
stamped is tendered in evidence in Civil Court and
admitted in evidence, then the very purpose of the
Stamp Act itself would be defeated. Therefore, a
power is vested in Civil Court to impound the
document. In fact, it is an obligation cast on the
Civil Court by the statute. But, the legislature does
not want to burden the Civil Court to go into the
question, whether a case for payment of lesser
penalty is made out or not. The Civil Courts cannot
be expected to be wasting their precious judicial
time in deciding matters which exclusively fall
within the sphere of revenue authorities and under
the scheme of the Act, which has to be decided by
them. Therefore, it prescribes that after
determining the duty payable on such instrument,
to collect the duty with ten times penalty and then
transmit the document to the Deputy
Commissioner with duty and penalty so collected.
Thereafter, a power is conferred on the Deputy
Commissioner under Section 38 of the Act to hold
an enquiry after giving an opportunity to the
person who has paid duty and penalty to extend
the benefit of reduction of penalty. Such a
reduction in penalty is available to both the
documents i.e., tendered before the Civil Court or
produced directly before the Deputy Commissioner
under Section 33. No discrimination in law is made
between these two types of documents. However,
there appears to be some conflicting opinion in this
regard."
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10. Relying on these judgments, he submits that once a
document is admitted in evidence, it is not open for anybody
to dispute the same.
11. Learned counsel appearing for the respondents/
defendants had advanced arguments in support of the order
impugned and he submits that when a particular document is
insufficiently stamped, it requires to be impounded, as per the
provisions of the Stamp Act, it is the duty of the Court to do it.
Such an objection is not raised earlier cannot be a ground. It is
submitted that they are not seeking any order to recall the
order of admission of the said document and the same is not
permissible.
12. Having heard the learned counsels on either side,
perused the entire material on record. There is no dispute about
the fact that the document is an insufficiently stamped
document as per the Karnataka Stamp Act and it is also an
admitted fact that the defendants have not raised any objection
with regard to the admission of the document. Even now, the
argument of the learned counsel for the petitioner/plaintiff
appears to be, though it is insufficiently stamped and the stamp
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duty and penalty is as the same was admitted in evidence, at
this point of time, it is not open to revisit the said order and
question of impounding the document will not arise. This Court
is not able to appreciate the said submission of the learned
counsel for the petitioner/plaintiff. It is the duty of the Court to
see that a particular document which is insufficiently stamped
has to be impounded by paying the deficit stamp duty and
penalty. Just because the objection is not raised, it will not
absolve the Court of its responsibility. There is no dispute with
regard to the proposition of law that a document which is
admitted in evidence cannot be revised or reviewed by the
Court.
13. This Court in case of Smt. Savithramma R.C. Vs.
M/s.Vijaya Bank and Another4 had dealt with a similar issue.
The Court at paragraph Nos.6, 7 and 8 had observed as follows:
"6. From the aforesaid statutory provisions and the
decisions, it is clear that a duty is cast upon every
Judge to examine every document, which is produced
or comes before him in the performance of his
functions. On such examination, if it appears to the
Judge that such instrument is not duly stamped, an
obligation is cast upon him to impound the same. This
duty is to be performed by the Judge irrespective of
the fact whether any objection to its marking is
4
ILR 2015 KAR 1984
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raised or not. Hence, there is a need for diligence on
the part of the Court having regard to the statutory
obligation under Section 33 of the Karnataka Stamp
Act. Section 34 of the Karnataka Stamp Act mandates
that an instrument, which is not duly stamped shall
not be admitted in evidence. If any objection is taken
to the admissibility of the evidence, it shall be
decided then and there. If this document is found to
be insufficiently stamped, then in terms of the
proviso (a) to Section 34, the Court shall call upon
the person, who is tendering the said document to
pay duty and ten times penalty and thereafter admit
the document in evidence. If duty and penalty is not
paid, the document shall not be admitted in evidence.
If such an objection is not taken at the time of
admitting the said instrument in evidence, and the
insufficiently stamped document is admitted in
evidence then Section 35 of the Act provides that
such admission shall not be called in question at any
stage of the same suit or proceeding on the ground
that the instrument has not been duly stamped. It
has nothing to do with impounding the document. A
duty is cast upon every Judge to examine every
document that is sought to be marked in evidence.
The nomenclature of the document is not decisive.
The question of admissibility will have to be decided
by reading the document and deciding its nature and
classification. The tendency to mark documents
without inspection and verification should be
eschewed. Even while recording ex parte evidence or
while recording evidence in the absence of the
Counsel for the other side, the Court should be
vigilant and examine and ascertain the nature of the
document proposed to be marked and ensure that it
is a document which is admissible. The Court should
not depend on objections of the other Counsel before
considering whether the document is admissible in
evidence or not. Section 33 of the Stamp Act casts a
duty on the Court to examine the document to find
out whether it is duly stamped or not, irrespective of
the fact whether an objection to its marking is raised
or not. Section 37 of the Act provides what the Judge
has to do when he has collected duty and penalty
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under Section 34 of the Act and what he has to do, if
the case does not fall under Section 34 of the Act.
Section 37 of the Karnataka Stamp Act reads thus:
37. Instruments impounded how dealt with.-
(1) 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 upon payment of a penalty as
provided by section 34 or of duty as provided by
section 36, he shall send to the Deputy Commissioner
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
Deputy Commissioner or to such person as he may
appoint in this behalf
(2) In every other case, the person so impounding an
instrument shall send it in original to the Deputy
Commissioner.
7. If the Judge has acted under Section 34 of the Act
and collected duty and penalty and admitted the
document in evidence, then under sub-Section (1) of
Section 37, he shall send to the Deputy Commissioner
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 Deputy Commissioner or
such person as he may appoint in this behalf. 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 original to the Deputy
Commissioner to be dealt with under Section 39 of
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the Act. Therefore, impounding the 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.
8. In the instant case, though the Trial Court has
said that the documents are duly stamped, it has not
discussed about the nature of the documents in order
to find out whether it is duly stamped. Only after the
said exercise, the Trial Court could have come to the
conclusion whether the duty paid on the instrument
is sufficient or not. Therefore, the Trial Court is
directed to undertake the above exercise and pass
appropriate orders and to proceed under Section 33
of the Act read with Section 37(2) of the Stamp Act, if
the documents are found to be insufficiently
stamped."
14. The above referred judgment squarely applies to the
facts of the case. The document which is insufficiently stamped
and admitted in evidence, objection regarding the admissibility
cannot be raised. Subsequently, but it does not fade away the
obligation to impound the document. In this case, a document
is admitted without impounding the instrument and the Court
had rightly fixed the stamp duty and penalty. The judgments
that are relied on by the learned counsel for the petitioner do
not apply to the facts and circumstances of this case. This Court
finds no reasons to interfere. Hence, this Court is passing the
following order:
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ORDER
i. Accordingly, the writ petition is dismissed.
ii. All I.As., in this writ petition, shall stand closed.
SD/-
(LALITHA KANNEGANTI) JUDGE MEG List No.: 1 Sl No.: 0