Orissa High Court
Abani Kumar Meher And Others vs District Collector Bargarh And Others on 15 February, 2017
Equivalent citations: AIR 2017 ORISSA 100, (2017) 1 ORISSA LR 728 (2017) 2 CLR 148 (ORI), (2017) 2 CLR 148 (ORI)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
C.M.P.No.1444 of 2016
In the matter of an application under Article 227 of the Constitution
of India.
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Abani Kumar Meher and others .... Petitioners
versus
District Collector, Bargarh and others .... Opposite parties
For Petitioners -- Mr.Ramakant Mohanty,
Sr. Advocate
For Opposite parties -- Ms.Samapika Mishra,
Addl. Standing Counsel
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing : 08.02.2017 & Date of Judgment: 15.02.2017
Dr.A.K.Rath, J.The seminal question that hinges for consideration of this Court is as to whether an unstamped document can be impounded and tendered into evidence ?
2. The petitioners as plaintiffs instituted C.S.No.7 of 2010 in the Court of the learned Civil Judge (Jr.Division), Barpali for permanent injunction impleading the opposite parties as defendants. Pursuant to issuance of notice, the defendants 1 and 2 entered contest and filed written statement denying the assertions made in the plaint. In course of hearing, the plaintiffs filed an application to 2 impound the deed of exchange dated 14.6.1985 and permit them to deposit the deficit stamp with penalty. The defendants filed objection to the same. The learned trial court assigned the following reasons and rejected the petition.
"In order to accept a document in evidence it must have satisfied the requirement of the Stamp Act as well as the requirement of the Registration Act. Even if, one requirement is not satisfied then a document cannot be taken into evidence. An unregistered document can be taken into evidence for collateral purpose provided it must have satisfied the requirement of the Stamp Act but where the document is itself is an unregistered document and hit by Section 49 of the Indian Registration Act then the same cannot be taken into evidence even if it satisfied the conditions of Section 35 of the Indian Stamp Act. It is pertinent to mention here that the provisions of the Stamp Act is very clear regarding impounding of a document wherein it is provided U/s.33 of the Stamp Act that a document which is insufficiently stamped shall be impounded. Even if we relied upon the provisions of Section 33 of the Stamp Act still the alleged deed of exchange is hit by Section 49 of the Indian Registration Act, which mandates that an unregistered document, which is compulsorily registrable under Section 17 of the Act, shall not be received in evidence. Regarding collateral use of the alleged deed of exchange, the position was made clear vide order dtd.07.08.2016 of this court. In such circumstances, I am of the opinion that the petition of the plaintiff is devoid of any merit and is rejected."
3. Heard Mr.Ramakanta Mohanty, learned Senior Advocate for the petitioners and Ms.Samapika Mishra, learned Additional Standing Counsel for the opposite parties 1 and 2.
4. Mr.Mohanty, learned Senior Advocate for the petitioners argued with vehemence that Section 35 of the Stamp Act makes instruments not duly stamped inadmissible in evidence. In the 3 instant case, the plaintiffs have filed application to impound the deed of exchange and to pay stamp duty and penalty. The learned trial court ought to have allowed the application.
5. Per contra, Ms.Mishra, learned Additional Standing Counsel for the opposite parties 1 and 2 supports the impugned order.
6. Section 17 (1) (b) of the Registration Act, 1908 mandates that any document which has the effect of creating and taking away rights in respect of an immovable property must be registered. Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals that documents that are required to be registered under Section 17 of the Act.
7. Section 35 of the Stamp Act, 1899 mandates that instrument not duly stamped inadmissible in evidence. The same is quoted below:-
"35. Instruments not duly stamped inadmissible in evidence, etc.-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:
Provided that-
(a) any such instrument [shall] be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
xxx xxx xxx"4
8. On a bare perusal of the said provision, it is pellucid that an authority to receive evidence shall not admit any instrument unless it is duly stamped.
9. The apex Court in the case of Omprakash Vrs.
Laxminarayan and others (2014) 1 SCC 618 held that an instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. In the case of Avinash Kumar Chauhan Vrs. Vijay Krishna Mishra, (2009) 2 SCC 532, the apex Court held that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Since adequate stamp duty was not paid, it was held that the court, therefore, was empowered to pass an order in terms of Section 35 of the Act.
10. Thus, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. In the event the petitioners want to mark those documents, it is open for them to pay the stamp duty together with penalty and get the document impounded and the learned trial court is at liberty to mark the said documents subject to proof and relevance.
11. In the result, the order dated 8.7.2016 passed by the learned Civil Judge (Junior Division) Barpali C.S.No.7 of 2010 is quashed. The learned trial court shall proceed with the case in 5 accordance with the observations made supra. The petition is allowed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack The 15th February, 2017/CRB.