Madhya Pradesh High Court
Chamibai vs Siddhnath on 5 March, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:5866
1 MP-7195-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 5 th OF MARCH, 2025
MISC. PETITION No. 7195 of 2024
CHAMIBAI AND OTHERS
Versus
SIDDHNATH AND OTHERS
Appearance:
Shri Manish Kumar Vijaywargiya - Advocate for the petitioners.
ORDER
This petition under Article 227 of the Constitution of India has been preferred by the petitioners/plaintiffs being aggrieved by the orders passed by the Courts below whereby their application under Order 39 Rule 1 and 2 of the CPC has been rejected.
2. The plaintiffs have instituted an action against the defendants for specific performance of contract dated 05.08.2003. As per them, they had entered into the said agreement with defendants 1 and 6 for a total consideration of Rs.2,35,000/- upon payment of earnest money of Rs.2 Lakhs followed by delivery of possession. They are in possession since then but the defendants have not executed the sale deed in their favor despite repeated requests.
3. Along with the plaint, the plaintiffs also filed an application under Order 39 Rule 1 and 2 of the CPC praying for issuance of temporary injunction restraining the defendants from alienating the suit property and Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-3-25 13:34:03 NEUTRAL CITATION NO. 2025:MPHC-IND:5866 2 MP-7195-2024 interfering with their possession over the same. The application was contested by the defendants and has been rejected by the Courts below primarily on the ground that the agreement to sale dated 05.08.2023 is neither registered nor is sufficiently stamped hence on the basis of the same no relief can be granted to the plaintiffs.
4. I have considered the submissions of the learned counsel for the plaintiffs and have persued the record.
5. The issue as regards seeking temporary injunction in a suit for specific performance of contract which is unstamped and unregistered has already been adjudicated upon by this Court in the case of Kailash versus Bhagwatilal and others, 2025 SCC online MP 57 in which it has been held that payment of stamp duty is a condition precedent for considering prayer for injunction also. Unless duty is paid on an instrument, it shall not be admitted in evidence for any purpose including collateral purpose. On the basis of an unregistered and unstamped agreement prayer for temporary injunction cannot be considered. It has been held as under:
"9. In Amit Dixit (supra) this Court held that payment of stamp duty is condition precedent for considering prayer for injunction also. Unless duty is paid on an instrument it shall not be admitted in evidence for any purpose including collateral purpose. The very basis for establishing right i.e. agreement to sell cannot be considered unless it is duly stamped. It was held as under:
"12. This point is no more res integra. AIR 2003 Kar 241 (K.B. Jayaram v. Navineethamma), Justice Tirath S. Thakur (as His Lordship then was), opined that no instrument chargeable with duty shall be admitted in evidence "for any purpose" by any person or even by consent of parties. In para 4 of said judgment, it is held that the court below should first insist upon payment of stamp duty and penalty on the agreement to sale before it. Thereafter, only prayer for injunction could have been considered. The order of court below was disapproved where it has issued injunction subject to payment of stamp duty and penalty. Thus, payment of stamp duty is condition precedent for considering the prayer for injunction also. This Court in (2009) 1 MP LJ 176 Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-3-25 13:34:03 NEUTRAL CITATION NO. 2025:MPHC-IND:5866 3 MP-7195-2024 (Narbada Prasad Agrawal v. Tarun Bhawasar), opined that unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose including collateral purpose. The Apex Court in (2009) 2 SCC 532 (Avinash Kumar Chauhan v. Vijay Krishna Mishra), opined as under:--
"25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes."
13. In the light of aforesaid, it is clear that the very basis for establishing right i.e. agreement to sell cannot be considered, unless it is duly stamped. The courts below have not committed any error in rejecting the injunction application because the document was not stamped. In view of this conclusion, it is not necessary to deal with other points raised by the parties...................."
10. Further in Milind Baghade (Supra) this Court considered the question whether on the basis of unregistered and unstamped agreement prayer for issuing temporary injunction can be considered and held that the same cannot be done. It was held as under:
"13. In the light of the law laid down by the Hon'ble Apex court and High courts, it is clear that very basis for establishing the right for example agreement to sale cannot be considered unless it is duly stamped. It is also noteworthy that agreement to sale between both the parties for the suit property which is cost of huge amount of Rs. 2,39,00,000/-, the respondent/plaintiff had allegedly paid only Rs. 5,00,000/. Admittedly the possession of suit property was never delivered to respondent and in the entire agreement, there is no recital regarding delivery of possession" .
6. In the present case, the agreement to sale on the basis of which the plaintiffs claim reliance was executed in the year 2023 on a stamp paper of Rs.50/-. The consideration stated therein is two like Rs.2,35,000/-. The stamp duty payable thereupon was admittedly much more than Rs.50/-. The document is hence deficiently stamped. The same is also unregistered. Thus on the basis of this unstamped and unregistered document no relief including relief of temporary injunction can be granted to the plaintiffs nor can the Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-3-25 13:34:03 NEUTRAL CITATION NO. 2025:MPHC-IND:5866 4 MP-7195-2024 same be considered even for collateral purpose of proving possession. It is also to be noted that though the agreement is of the year 2003 the suit for its specific performance has been filed after a period of 19 years in the year 2024.
7. Thus, in view of the aforesaid discussion, I do not find any error having been committed by the Court below in rejecting plaintiff's application for issuance of temporary injunction. The impugned orders are hence affirmed, as a result of which the petition is dismissed.
(PRANAY VERMA) JUDGE jyoti Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 7-3-25 13:34:03