Punjab-Haryana High Court
Sanjay Kumar And Others vs State Of Haryana And Others on 3 April, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.4399 of 2011(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.4399 of 2011(O&M)
Date of decision: 03.04.2014
Sanjay Kumar and others ......Appellant(s)
Versus
State of Haryana and others ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. R.D. Anand, Advocate for the appellant(s).
Ms. Aakanksha Sawhney, DAG, Haryana.
Rakesh Kumar Garg, J.
This is plaintiffs' second appeal challenging the judgement and decrees of the Courts below whereby their suit as well as appeal for declaration and permanent injunction have been dismissed.
As per the averments, the plaintiff-appellants purchased a house vide sale deed No.1526 dated 16.1.1997 for a consideration of Rs. 1,50,000/-. They paid stamp duty of Rs.23,250/- at the rate of Rs.700/- per square yard fixed by the Collector. The Sub Registrar, Narwana registered the sale deed and issued registration certificate to the parties. Thereafter, on 10.11.1997, the Sub Registrar, Narwana sent a sale deed to the Collector, Narwana under section 47-A for determining the value of the house for the purpose of payment of fee as per the Stamp Act. Thereafter, the order was passed by the Collector which was null and void and liable to be set aside. Since the defendants were threatening to recover Rs.1,62,750/-, as a land revenue, for which they have got no right, necessity arose to file the instant suit.
Saini Pushpinder
Upon notice, the defendant-respondents contested the suit 2014.04.21 15:01 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4399 of 2011(O&M) 2 maintaining that sale deed dated 16.1.1997 was executed for consideration of Rs.1,50,000/- whereas the market value of the house in question was Rs.6000/- per square yard and the plaintiffs should have affixed stamp duty at the prevalent market value of the said house. It was denied that the defendants violated any provisions of the Stamp Act. It was the specific case of the defendants that they issued notice to the plaintiffs and in response to the aforesaid notice, they appeared but thereafter, they did not come present and thus, order in question was passed legally. Since the plaintiff-appellants failed to pay the stamp duty, as determined, the respondents were entitled to recover the same as land revenue. Thus, dismissal of the suit was prayed.
On the basis of the pleadings of the parties, the following issues were framed:
"i) Whether the order dated 16.12.1997 and notice dated 27.1.2004 are illegal, null and void as alleged? OPP
ii) Whether the plaintiffs are entitled to the decree for permanent injunction as prayed for?
OPP.
iii) Whether the Civil Court has got no jurisdiction to entertain the suit? OPD
iv) Whether the suit of the plaintiffs is barred by limitation? OPD.
v) Whether the suit of the plaintiffs is bad for want of notice under Section 80 CPC? OPD
vi) Whether the plaintiffs have got no locus standi to file a suit against the defendants? OPD.
vii) Relief."
Saini Pushpinder2014.04.21 15:01 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4399 of 2011(O&M) 3 While deciding issues No.1 and 2 against the appellants, the trial Court observed as under:
"14. A cursory persual of above provisions shows that on a reference made by the Registering Officer under sub Section (1) of Section 47-A, the Collector is required to determine the value of consideration and duty payable for registration of any instrument after making enquiry and after giving the parties a reasonable opportunity of hearing. Under sub section (3), the Collector suo-motu or on receipt of its reference from the Inspector General of Registration or the Registrar of the District, in whose jurisdiction the property or any portion thereof which is the subject-matter of the instrument is situate, call for and examine the instrument for the purpose of satisfying himself as to the correctness of its value or consideration. Any person aggrieved by an order of the Collector made under sub Section (2) or sub Section (3) prefer an appeal before the Commissioner of a division which shall be heard and disposed of in a manner prescribed under the rules.
15. It is further clear that under sub Section (3), the Collector can take such action, either suo motu or on receipt of reference from the Inspector General of Registration or the Registrar of a District in whose jurisdiction the property or any Saini Pushpinder 2014.04.21 15:01 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4399 of 2011(O&M) 4 portion thereof which is the subject-matter of the instrument is situate within period of three years from the date of registration of instrument. In other words no action can be taken by the Collector under sub Section (3) after expiry of three years counted from the date of registration from instrument in present case, sale deed in question was registered on 16.1.1997 and Collector passed an order under challenge on 16.12.1997 i.e within period of limitation. Under the facts and circumstances of the case, therefore, it cannot be said that defendants have violated the provision of any law and order in question is passed after a period of limitation."
Issues No.3, 5, and 6 were not pressed on behalf of the defendants whereas under issue No.4, it was held that suit of the plaintiffs was barred by limitation and thus, the suit was dismissed.
Feeling aggrieved from the aforesaid judgement and decree of the trial Court, the plaintiffs filed an appeal which was also dismissed by the Lower Appellate Court vide judgment and decree dated 26.7.2011. The relevant paragraphs of the Lower Appellate Court reads thus:
"10. After hearing the rival contentions of both the sides and after scanning the evidence adduced on the file by both the parties, it is manifestly clear that the appellants have assailed the order dated 16.12.1997, mainly on the ground that the Collector has violated the provisions of Section 71 of the Registration Act and Section Saini Pushpinder 2014.04.21 15:01 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4399 of 2011(O&M) 5 47-A of Indian Stamp Act. To prove their case, the plaintiffs/appellants did not appear in the witness box but they examine Trilok Chand as PW1. He tendered his affidavit Ex.PW1/A alleging himself to be attorney of the plaintiffs. PW1 Trilok Nath did not tender power of attorney on the file to establish that he was authorised to appear in the court on behalf of the plaintiffs. It is worthwhile to mention here that the plaintiffs did not appear in the witness box to depose that order was passed by the authority without providing any adequate opportunity to them. So, the non-appearance of the appellants in the witness box clearly indicates that facts mentioned in the plaint remained improved. It is settled law that the party, who did not opt to appear in the court, adverse inference has to be drawn against him. Plaintiffs/appellants have failed to discharge the owners shifted on them. Non-appearance of the plaintiffs gives rise to a strong presumption against them under section 144 of Indian Evidence Act. The law of the land is well settled that who is a party does not appear in the witness box and does not deny the case of opponent, it suffers a great risk in non- appearance. I place my reliance upon Sardari Lal vs. Kartar Singh and others, 1998(2) PLJ 55.
11. Now the crucial question thus arises, Saini Pushpinder 2014.04.21 15:01 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4399 of 2011(O&M) 6 whether the evidence led by the plaintiffs is sufficient to hold that order passed by the authority is in the violation of the procedure. Plaintiffs/appellants did not appear in the witness box while it was the bounden duty of the plaintiffs/appellants to appear in the witness box to prove their case by way of leading unequivocal, cogent and consistent evidence but there is no evidence on behalf of the appellants except statement of PW1 Trilok Nath, who is neither the attorney nor the attesting witness of the document nor was present at the time of execution of the document. So, testimony of PW1 Trilok Nath cannot be taken into consideration to ascertain that the order passed by the authority is having any infirmity.
11. It is not in dispute that as per provisions of section 47-A sub section (1), on reference made by the registering authority, the Collector is required to determine the value or consideration and duty payable for registration of any instrument after making enquiry and after giving the parties a reasonable opportunity of hearing. Under sub section (3) the Collector on suo motu or on receipt of reference from the Inspector General of Registrar of a District, in whose the property or any portion thereof which is the subject matter of an instrument is situated, call for and examine the Saini Pushpinder 2014.04.21 15:01 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4399 of 2011(O&M) 7 instrument for the purpose of satisfying himself as to the correctness of its value or consideration. Any person aggrieved by an order of the Collector under sub section (2) or sub section (3) may within 30 days from the date of order, prefer an appeal before the Commissioner of the Division and all such appeals shall be heard and disposed of in such manner as may be prescribed by the rules made under this Act. The plaintiffs did not appear in the witness box to depose that the order was passed by the authorities at the behest without providing any opportunity. When there is no evidence on the file led by the plaintiffs/appellants that proper opportunity has not been granted, then there is no question to tinker with the order because it is not the case of the appellants that the order was passed by the authority in violation of the specific provisions of the Act. So, order passed by the authority is well within purview of the Act and is legal and binding on the rights of the plaintiff's because the same has been passed within periods of three years from the date of registration of the instrument as provided under sub section 3 of section 47-A of Stamp Act.
12. The next contention of learned Govt. pleader is that the plaintiffs have only remedy to file appeal before the Commissioner within one Saini Pushpinder 2014.04.21 15:01 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4399 of 2011(O&M) 8 month from the date of passing of order but they did not opt to file appeal before the Commissioner and filed the suit in the civil Court. While this contention was wriggled out by the learned counsel for the appellants on the ground that if any illegal order is passed, then civil Court has jurisdiction. It is admitted case of the parties that appeal was not preferred against the order passed by the Collector and filed the civil suit. While the remedy to the appellant was only to file the appeal before the Commissioner within time. Moresoever, it is not in dispute that the period of limitation to challenge the order or decree is 3 years but the plaintiffs admittedly, challenged the order in question after the gap of about 7 years. That order was passed on 16.12.1997 and the same was challenged on 21.7.2004 which is apparently beyond period of limitation.
13. As a sequel to above said discussion, it is manifestly clear that the learned counsel for the appellants has failed to point out any infirmity in the judgement passed by the learned trial Court. Therefore, the findings recorded by learned trial Court are hereby affirmed on all the issues."
Still aggrieved, the plaintiffs have filed the instant appeal submitting that the following substantial questions of law arise in this appeal:
"i) Whether the Collector had any jurisdiction Saini Pushpinder 2014.04.21 15:01 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4399 of 2011(O&M) 9 to invoke the provisions of section 47A of the Act under the facts and circumstances of the case?
ii) Whether the orders passed by the Collector and the notice issued, are wholly without jurisdiction null and void?
iii) Whether in view of the facts and circumstances of the case, the judgement and decree of the Ld. Trial Court/Ld. First Appellate Court are sustainable in law?"
Counsel for the appellants has vehemently argued that the impugned judgements and decrees of the Courts below are against the settled law, as it is the consistent view of this Court that there is no provision in the Indian Stamp Act wherein deficient stamp duty can be recovered by the Registering Authority either from the vendor or from the vendee after registration of the sale deed. To support his submission, counsel for the appellants has relied upon a judgement of this Court in M/s Afrik Farms (Private) Ltd., New Delhi v. State of Haryana and others 2010 (4) Law Herald (P&H) 3388.
However, the aforesaid judgment do not promote the cause of the appellants, as raised before this Court, as in the instant case, the deficient Stamp duty has been determined by the Collector who is duly authorised under section 47-A of the Act to pass such an order whereas in Om Pal's case (supra) as relied upon in M/s Afrik Farms's case (supra) the Stamp duty was sought to be recovered by the Registering Authority.
At this stage, it may be noticed that a specific remedy has been provided to file an appeal before the Commissioner under section 47- A(4) of the Act which reads thus:
"(4) Any person aggrieved by an order of the Saini Pushpinder 2014.04.21 15:01 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.4399 of 2011(O&M) 10 Collector under sub section (2) or sub Section (3) may, within thirty days from the date of the order, prefer an appeal before the Commissioner of the Division and all such appeals shall be heard and disposed of in such manner as may be prescribed by rules made under this act."
Admittedly, the appellants have not filed any statutory appeal and have filed the instant suit.
Learned counsel for the appellants has attempted to argue that the impugned order of the Collector being illegal, Civil Court has the jurisdiction under section 9 of the Civil Procedure Code. There is no dispute that the jurisdiction of the Civil Court under Section 9 of the Act is much wider as interpreted by a Catena of judgements such as Vinod Kumar and another versus Suresh Pal, 1985 PLJ 460.
However, in the instant case, no violation of any procedure or law could be pointed out before this Court and in view thereof, the suit of the appellants without availing the right of appeal was not maintainable.
It may further be noticed that the impugned order was admittedly passed on 16.12.1997 whereas the suit was filed on 21.7.2004 which is apparently beyond the period of three years of limitation.
Thus, no error can be found in the findings recorded by Courts below.
No substantial question of law, as raised, arises in this appeal. Dismissed.
April 03, 2014 (RAKESH KUMAR GARG)
ps JUDGE
Saini Pushpinder
2014.04.21 15:01
I attest to the accuracy and
integrity of this document
High Court Chandigarh