Karnataka High Court
Mr K M Ibrahim vs Mr A R Suresh on 20 February, 2026
NC: 2026:KHC:10713
WP No. 16034 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MS. JUSTICE TARA VITASTA GANJU
WRIT PETITION NO. 16034 OF 2022 (GM-CPC)
®
BETWEEN:
1. MR K M IBRAHIM
SON OF MR MOHAMMED KUTTY
AGED ABOUT 63 YEARS
2. MR SAINUL ABID K
SON OF MR ABU
AGED ABOUT 35 YEARS
BOTH ARE RESIDING AT
NELLUDIKERI VILLAGE
SOMWARPET TALUK
KODAGU - 571253
...PETITIONERS
(BY SRI. HANEEF.M.H., ADVOCATE)
AND:
1. MR A R SURESH
SON OF LATE MR. RAGHAVAN,
AGED ABOUT 48 YEARS,
RESIDING AT NELLUDIKERI VILLAGE,
SOMWARPET TALUK,
KODAGU - 571 253.
...RESPONDENT
(RESPONDENT SERVED)
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NC: 2026:KHC:10713
WP No. 16034 of 2022
HC-KAR
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS WITH RESPECT TO O.S.NO.19/2019 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC AT SOMWARPET
KODAGU; QUASH THE IMPUGNED ORDER DTD.21.6.2022
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC AT
SOMWARPET KODAGU ON IA NO.XI IN O.S.NO.19/2019
ANNEXURE-K; DIRECT THE LEARNED SENIOR CIVIL JUDGE
AND JMFC AT SOMWARPET KODAGU ON IA NO.XI IN
O.S.NO.19/2019 ANNEXURE-H FILED BY THE DEFENDANT.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORAL ORDER
1. The present petition seeks to challenge an order dated 21.06.2022 in O.S.No.19/2019 passed by the Senior Civil Judge and JMFC, at Somwarpet, Kodagu (hereinafter referred as 'Impugned Order'). By the Impugned Order, an application under Section 34 of Karnataka Stamp Act, 1957 (hereinafter referred as KS Act) was allowed and the document being an agreement to sell dated 10.01.2015 -2- NC: 2026:KHC:10713 WP No. 16034 of 2022 HC-KAR was impounded, giving a finding that a photocopy can be impounded under the provisions of Sections 34 to 36 KS Act.
2. The service on the respondent/defendant was effected before this Court on 08.09.2022. Despite service none has appeared for the respondent / defendant before this Court. This Court had by its order dated 16.08.2022 directed stay of the Impugned Order. Given the pendency of interim directions passed by the Court and the interim order granted, this Court deems it apposite to hear and decide the matter today.
3. Learned counsel for the petitioner/plaintiff submits that the petitioner/plaintiff executed an Agreement to Sell dated 10.01.2015 with the respondent/defendant whereby the respondent/defendant agreed to sell 1.20 acres of land situated at Nelliahudikeri Village, Somwarpet Taluk, Kodagu District for consideration of Rs.1,05,00,000/-. He submits that an advance of Rs. 25,00,000/- was paid on the date of the execution of the agreement and the -3- NC: 2026:KHC:10713 WP No. 16034 of 2022 HC-KAR remaining amount was to be paid in installments thereafter.
4. It is the case of the petitioner/plaintiff that the respondent/defendant did not perform his part of the contract and since he was unable to obtain the title documents, the parties decided to cancel the contract and executed a Cancellation Agreement dated 19.01.2016. It is set out in the Cancellation Agreement that the amount of Rs.25,00,000/- which was taken as an advance would be refunded within three months from the date of such agreement. Since the amounts were not refunded, the petitioner/plaintiff approached the Court by filing a suit for recovery of the sum of Rs.25,00,000/-.
5. Learned counsel for the petitioner/plaintiff further submits that during the course of cross-examination, the defendant's witness was confronted with a copy of the Agreement to Sell and that the said Agreement to Sell was exhibited as Ex.P8. Subsequent thereto, the -4- NC: 2026:KHC:10713 WP No. 16034 of 2022 HC-KAR respondent/defendant filed an application under Section 34 of the KS Act, seeking that the agreement is insufficiently stamped and stamp duty should be paid. Thus, it is contended that the learned Trial Court passed the Impugned Order directing impounding of the photo copy of Agreement to Sell as well as affixing a penalty thereon. He further submits that the learned Trial Court has relied upon a judgment of the Co-ordinate Bench of this Court in Smt.Shanthi Vijaydev Vs. Sri.L.M.Rasan1. However, he submits that this judgment is contrary to judgments of the Supreme Court including Jupudi Kesava Rao vs. Pulavarthi Venkata Subbarao And Others2, which has been consistently followed.
6. Learned counsel for the petitioner also contends that in terms of Section 35 of the KS Act, the objection with reference to the admissibility of a document cannot be taken belatedly, it must be taken in the first instance. 1 W.P.No.1573/2017 Order Dated 03.02.2017 2 (1971) 1 SCC 545 -5- NC: 2026:KHC:10713 WP No. 16034 of 2022 HC-KAR
7. For the purposes of this judgment, it is apposite to set out Section 34 and Section 2(i)(j) of the KS Act, which are reproduced below:
34. 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 not being an instrument chargeable [with a duty not exceeding fifteen paise] only, or a mortgage or crop Article [35](a) of the Schedule chargeable under clauses
(a) and (b) of Section 3 with a duty of twenty-five paise shall, subject to all just exceptions, 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;
(b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(c) nothing herein shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898;
(d) nothing herein contained shall prevent the admission of any instrument in any Court when -6- NC: 2026:KHC:10713 WP No. 16034 of 2022 HC-KAR such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the [Deputy Commissioner] as provided by Section 32 or an other provision of this Act [and such certificate has not been revised in exercise of the powers conferred by the provisions of Chapter VI].
[Emphasis Supplied]
8. Section 2(1)(j) of the KS Act reads as follows:
2. Definitions. -(1) In this Act, unless the context otherwise requires -
(j) "Instrument" includes every document [and record created or maintained in or by an electronic storage and retrieval device or media] by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded;"
[Emphasis Supplied]
9. The Supreme Court in Jupudi Kesava Rao's case while clarifying the law in this behalf has held that 1st limb of Section 35 of the Indian Stamp Act, 1899 (hereinafter referred to as the 'Stamp Act') which is pari materia to Section 34 of the KS Act, sets out that unless an instrument has been duly stamped, it cannot be led in evidence until the deficiency is cured and the penalty paid. The Supreme Court has further held that Section 35 only -7- NC: 2026:KHC:10713 WP No. 16034 of 2022 HC-KAR deals with original instruments and not copies. The relevant extract is below:
13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence.
Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.
14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The works "an instrument" in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where original instrument was admitted in evidence without objection at the initial stage of a suit or -8- NC: 2026:KHC:10713 WP No. 16034 of 2022 HC-KAR proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Sec.36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped.
[Emphasis Supplied]
10. The Supreme Court in the judgment of Hariom Agarwal Vs. Prakash Chand Malviya3 has held that from a plain reading of the provisions of Sections 33, 35 and Section 2(14) of the Stamp Act that only there is no scope for inclusion of a copy of the document for the purposes of the Stamp Act. It has been held that a copy of an instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Stamp Act. The Supreme Court relied upon Section 2(14) of the Stamp Act, which provisions are pari materia to those of Section 2(1)(j), under the KS Act. The Supreme 3 (2009) 9 SCC 87 -9- NC: 2026:KHC:10713 WP No. 16034 of 2022 HC-KAR Court while relying on the judgment in the case of Hariom Agarwal while relying upon and reiterating the principle laid down in Jupudi Kesava Rao's judgment, has held that:
"4. On being aggrieved by the order of the trial court, the respondent-landlord filed a writ petition before the High Court. The High Court set aside the order of the trial court and remitted the matter back to decide the question as to whether a photocopy of an improperly stamped original document can be received in secondary evidence. After hearing the parties, the trial court by its order dated 9.8.2005 ordered that the document be impounded, it being insufficiently stamped; the document was sent to the Collection of Stamps for affixing appropriate stamp duty and thereafter for sending the document back to the court. This order was challenged by the respondent in a review petition which was dismissed by the trial court. Thereafter, a writ petition was filed before the High Court. The High Court by its judgment dated 3.5.2006 held that the impugned document which is a photocopy of the agreement, original of which is lost, cannot be admitted in evidence, and that such a document can neither be impounded nor can be accepted in secondary evidence."
xxx xxx xxx "8. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no
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NC: 2026:KHC:10713 WP No. 16034 of 2022 HC-KAR doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899."
[Emphasis Supplied]
11. In the present case however, a photocopy has been impounded by the learned Trial Court. In view of the settled law in this behalf, the Impugned Order cannot be sustained and is accordingly set aside.
12. The petition is allowed in the aforegoing terms. All pending applications stand closed. Digitally signed by TARA VITASTA GANJU Location: HIGH COURT OF KARNTAKASd/-
(TARA VITASTA GANJU) JUDGE BVK / KS List No.: 2 Sl No.: 4
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