Karnataka High Court
Smt Shanthi Vijaydev vs Sri L M Rasan on 3 February, 2017
Equivalent citations: 2017 (2) AKR 353
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NO.1573/2017 (GM-CPC)
BETWEEN:
SMT. SHANTHI VIJAYDEV
W/O SRI. VIJAYDEV,
AGED ABOUT 66 YEARS,
R/A NO.19/1, SECOND FLOOR,
BOWEELANE 'D' STREET,
ASHOKANAGAR,
BANGALORE - 560 025.
(SENIOR CITIZEN BENEFIT
IS NOT CLAIMED) ... PETITIONER
(BY SRI: RAVISHANKAR S., ADVOCATE)
AND:
SRI. L.M. RASAN
S/O M.L. MANUVEL,
AGED ABOUT 51 YEARS,
NO.19/1, BOWEELANE 'D' STREET,
ASHOKANAGAR,
BANGALORE - 560 025. ... RESPONDENT
*****
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER OF XL ADDL. CITY CIVIL JDUGE AT
BANGALORE IN O.S.NO.6399/2013 ON I.A.NO.III
DTD.28.10.2016 VIDE ANNEX-E AND DISMISS THE
I.A.NO.III BY ALLOWING THIS PETITION AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioner is the plaintiff in O.S.No.6399/2013. That suit has been filed by him seeking possession of the suit schedule property and for damages and other reliefs.
2. Along with the plaint, petitioner filed a copy of the rent agreement. The respondent herein who is the defendant in the suit filed an application under Sections 33 and 34 of the Karnataka Stamp Act, 1957 ('the Act' for short) read with Section 151 of the Code of Civil Procedure, 1908 (CPC) requesting the Court to impound the rental agreement filed by the petitioner herein. By 3 the impugned order dated 28.10.2016 the trial Court has impounded the rental agreement dated 6.3.2009 and has directed the plaintiff to pay requisite duty and penalty of the said document. Being aggrieved, the plaintiff in the suit has preferred this writ petition.
3. I have heard learned counsel for the petitioner and perused the material on record.
4. It is contended on behalf of the petitioner that the original rental agreement is with the defendant and therefore the plaintiff filed a copy of the same; that a copy of an instrument can be produced and the same can be acted upon as a copy would not come within the definition of instrument under Section 2(1)(j) of the Act which includes only the original instrument; that in the instant case the petitioner herein had not produced the original instrument, but a copy only and therefore the trial Court could not have directed impounding of the 4 said document. In support of his submission petitioner's counsel has relied upon a decision of the Hon'ble Supreme Court in the case of Jupudi Kesava Rao Vs. Pulavarthi Venkata Subbarao and others reported in AIR 1971 SC 1070.
5. Having heard learned counsel for the petitioner and on perusal of the material on record it is noted that Section 34 of the Act categorically states that 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.
6. It may be that in the present case the original rental agreement is in the custody of the defendant. If that was so, the petitioner ought to have categorically 5 stated that fact and not produced the document as such. But on the other hand, the petitioner produced the copy of the document for the purpose of supporting his case for seeking the relief in the suit. Although the said document is not yet marked in evidence, nevertheless having regard to the mandate of Section 34 of the Act, the trial Court was justified in directing impounding of that document. In fact, in the decision referred to above, the Hon'ble Supreme Court has categorically stated that even if secondary evidence is permitted to be let in, when the original is admittedly chargeable with duty was not stamped or insufficiently stamped would tantamount to the document being acted upon by the person having by law or authority to receive evidence and such a document cannot be permitted to be marked in evidence, though Section 35 of the Act is not concerned with any copy of an instrument and a party can only be allowed to rely on a 6 document which is an instrument for the purpose of Section 35 of the Act. Further, while Section 35 (34 of the Act) deals with original instrument and not copies, Section 36 (35 of the Act) cannot be interpreted to allow secondary evidence of an instrument to be produced or marked in evidence, although the original instrument is insufficiently stamped. Further, in the context of Sections 35 and 36 of the Indian Stamp Act, 1899, which is almost in parimateria with Sections 34 and 35 of the Karnataka Act, at para 14, it has been observed as under:
Para 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 words "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 7 admitted in evidence without objection at the initial stage of a suit or 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 is no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped."
7. In that view of the matter, the petitioner cannot contend that as only a copy of the document has been produced and not the original instrument, the same cannot be subjected to duty and penalty. I find no merit in the writ petition, as the trial Court was justified in 8 directing the petitioner to pay duty and penalty on the said document also.
Writ petition is dismissed.
Sd/-
JUDGE ap