Madhya Pradesh High Court
Surendra Chabra vs Mithlesh Kumar Kanojiya on 12 January, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 12 th OF JANUARY, 2023
MISC. PETITION No. 5584 of 2019
BETWEEN:-
SURENDRA CHABRA S/O SHRI TRILOK CHABRA, AGED
ABOUT 43 YEARS, OCCUPATION: FARMER R/O WARD
NO. 9, MAIN ROAD, DINDOR,I TAHSIL AND DISTRICT
DINDORI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ASHOK KUMAR JAIN- ADVOCATE)
AND
1. MITHLESH KUMAR KANOJIYA S/O SHRI
CHARMULAL KANOJIYA, CASTE KUMHAR, AGED
ABOUT 42 YEARS, R/O VIKRAMPUR (MADHYA
PRADESH)
2. SMT.SAVITRI SAHU W/O R.K.SAHU, AGED ABOUT
38 YEARS, CASTE TELI, OCCUPATION: HOUSE
WIFE, R/O WARD NO. 9 DINDORI (MADHYA
PRADESH)
3. SMT.REKHA SAHU W/O RAJKUMAR SAHU CASTE
TELI AGED ABOUT 32 YEARS, OCCUPATION
HOUSE WIFE, R/O WARD NO. 9 DINDORI
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANJAY KUMAR PATEL- ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 17.10.2019 passed by Ist Civil Judge Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 13-01-2023 18:44:50 2 Class-I, Dindori in Civil Suit No. 39A/2015 by which the right of petitioner to lead the evidence has been closed.
It is submitted by counsel for the petitioner that the petitioner has filed a suit for specific performance of contract and objection was raised that the agreement has been executed on an insufficiently stamp paper. Accordingly, the trial Court returned the document to the petitioner for getting it impounded, whereas, the trial Court itself should have sent the document to the Collector of Stamps for impounding purposes. The Collector of Stamp did not impound the document on the ground that it has not been sent by the Court. Thereafter, the petitioner moved an application before the trial Court for sending the document for impounding, but the said application was rejected. Against the said order, the petitioner preferred M.P. No. 5393/2019 and by order dated 25.08.2022, the petition has been allowed and the trial Court has been directed to send the document for impounding. However, in the meanwhile, the right of the petitioner to lead the evidence was closed by the impugned order.
Challenging the impugned order passed by the trial Court, it is submitted that now the High Court has directed the trial Court to send the document for impounding and in these circumstances, the petitioner must get an opportunity to lead evidence, otherwise, the petitioner would not be in a position to prove the execution of agreement to sale.
Per contra, the petition is vehemently opposed by counsel for the respondents. However, it is fairly conceded that this Court by order dated 25.08.2022 passed in M.P. No. 5393/2019 has directed the trial Court to send the document for impounding.
Heard learned counsel for the parties. In M.P. No. 5393/2019, following order has been passed:-
Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 13-01-2023 18:44:50 3"Petitioner has filed this miscellaneous petition under Article 227 of the Constitution of India challenging order dated 05.08.2019 contained in Annexure-P/6.
Learned counsel appearing for the petitioner submitted that petitioner has filed a suit for specific performance of contract. In said suit, petitioner has filed a document which is agreement dated 12.03.2011 which was not properly stamped, therefore, an application was filed by petitioner for impounding of document so that document can be affixed with deficit stamp duty. It is submitted that Court directed return the document to the plaintiff after comparing it with photocopy and directed him to get the document impounded and pay deficit Court fees before Collector. Petitioner approached Collector. Collector gave various dates in the case and finally dismissed his application stating therein that trial Court ought to have impounded the document and sent the same to Collector for payment of deficit stamp duty. As application of petitioner was dismissed by Collector, petitioner again approached trial Court for impounding of document. Application was dismissed by the trial Court on ground that petitioner had approached Collector after delay. In these circumstances, counsel for petitioner made a prayer for quashing of order dated 05.08.2019 and direct trial Court for impounding of document and sending the same to Collector for payment of deficit stamp duty.
Learned counsel appearing for respondents opposed the contention of petitioner and submitted that order has been passed by trial Court for return of document on 10.10.2017. Petitioner has filed an application before Collector on 16.04.2018 and thereafter, second application was filed before Collector on 15.04.2019. There was inadvertent delay on part of petitioner for getting his document impounded, therefore, trial Court has rightly dismissed the application filed by the petitioner.
Heard the counsel for the parties.
Sections 33 and 38 of the Indian Stamp Act provides as under:-
3 3 . Examination and impounding of instruments-
(1 ) 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 Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 13-01-2023 18:44:50 4 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.
( 2 ) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in [India] when such instrument was executed or first executed: Provided that
(a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
(b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in cases of doubt,
(a) the State Government may determine what offices shall be deemed to be public offices; and
(b) the State Government may determine who shall be deemed to be persons in charge of public offices.
Section 38. Instruments impounded, how Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 13-01-2023 18:44:50 5 dealt with-
(1) Where 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 35 or of duty as provided by section 37, 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.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.
Court or authority has to act in accordance with Section 38 of the Indian Stamp Act, 1899 on receiving a document which has been deficitly stamped. Court or authority either has to pass an order to pay deficit stamp duty and penalty in accordance with Section 35 and thereafter send authenticated copy of instrument along with certificate to Collector and if Court or authority is not acting in accordance with Section 38 (1) then authority is required to impound the instrument and send it in original to Collector as per Section 38(2) of the Act, 1899.
Court has not taken action in accordance with Section 38 of Act, 1899 and has returned the document to party for getting it impounded by Collector. Since, Court has not acted in accordance with Section 38 of the Indian Stamp Act, 1899, therefore, there is jurisdictional error in the order. In view of same, order dated 05.08.2019 passed by trial Court is set aside. Miscellaneous petition is allowed. Trial Court is directed to act in accordance with Sections 38 (2) of the Indian Stamp Act, 1899."
In light of the aforesaid order, this Court is of the considered opinion that the petitioner must get an opportunity to lead evidence so as to prove his agreement to sale. Therefore, in the light of changed circumstances, the Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 13-01-2023 18:44:50 6 impugned order dated 17.10.2019 passed by the trial Court cannot be upheld. It is, accordingly, set aside and it is directed that the petitioner will examine all his witnesses within a period of three months from today. It is made clear that if required, the trial Court may proceed on day-to-day basis.
It is made clear that in case, if the petitioner fails to examine all his witnesses within a period of three months, then no further adjournment shall be granted.
The petition succeeds and is hereby allowed.
(G.S. AHLUWALIA) JUDGE ashish Signature Not Verified Signed by: ASHISH KUMAR LILHARE Signing time: 13-01-2023 18:44:50