Rajasthan High Court - Jodhpur
Smt. Sarla Devi & Ors vs Ramsahai & Ors on 14 February, 2014
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL FIRST APPEAL NO.409/2013
Smt. Sarla Devi & Ors.
vs.
Shri Ramsahai & Ors.
Date of Judgment :: 14th February, 2014.
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Ashwini Kumar Babel, for the appellants.
Mr. S. Saruparia, for respondent Nos.1 and 2.
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BY THE COURT:
By order dated 25.10.2013 notices were directed to be issued to the respondents for final disposal and the respondents have been served. Mr. S.Saruparia, learned counsel appears on behalf of respondent Nos.1 and 2.
Heard learned counsel for the parties.
This appeal is directed against judgment dated 25.07.2013 passed by Additional District Judge No.2, Bhilwara, whereby, the suit filed by the appellants for partition has been dismissed exercising powers under Order VII, Rule 11(d) CPC. The appellants have also questioned the validity of order dated 28.05.2013 passed by the trial court during pendency of the suit.
Facts in brief may be noticed thus: the appellants-plaintiffs filed a suit for partition, inter alia, with the averments that they were legal representatives of Prahalad Rai and said Prahalad Rai, Ram Sahay, Ram Rai and Rameshwar Lal were co-sharers of the suit properties, wherein, Prahalad Rai, Ram Sahay and Ram Rai 2 had half share and half share belong to Rameshwar Lal; the appellants sought partition of the suit properties by metes and bounds.
A written statement filed by the respondent No.2 and averments made in the plaint were disputed. Written statement was also filed by respondent Nos.1 and 3 to 6 indicating that they have no objection to the partition.
During pendency of the suit, at the stage of admission - denial of documents, the defendants raised objection about lack of registration and deficiency of stamp duty regarding documents i.e. final decree dated 09.03.1994, release deed and a receipt dated 19.02.1995.
The trial court after hearing the parties, by its order dated 25.09.2008 impounded the release deed and the receipt and referred the same to the Collector (Stamps) and declined to pass order regarding the final decree.
The said order dated 25.09.2008 was questioned by the plaintiffs by filing S.B. Civil Writ Petition No.347/2010 (Smt. Sarla Devi & Ors. Vs. Shree Ramshai & Ors.), which petition came to be decided by order dated 13.09.2012, wherein, the appellants prayed that the decree dated 09.03.1994, which was not referred by the trial court by its order dated 25.09.2008 on account of the fact that the same was not a original document, be considered and after hearing the parties, the Court directed as under:-
"After perusing order impugned, I am in agreement with the arguments advanced by learned counsel for the petitioner that original decree passed in case 3 cannot be produced before the court, therefore, in the event of filing certified copy of the decree by the petitioner, the same may be sent to District Collector, Bhilwara for determination of stamp duty and after determination and deposition of amount, District Collector shall return the said original decree to the Court. The respondents will be at liberty to raise their objections with regard to admissibility of said decree on the question of registration."
In pursuance of order dated 25.09.2008 (supra), the Collector (Stamps) by his order dated 21.02.2011 came to the conclusion that the release deed dated 19.02.1995 was required to be properly stamped and pointed out deficiency to the extent of Rs.20,000/- and imposed penalty of Rs.2,000/- and directed recovery of a sum of Rs.22,000/-.
In pursuance of the order dated 13.09.2012 (supra), the Collector (Stamps) by his order dated 29.01.2013 determined the deficient stamp duty on the said decree to the tune of Rs.8,84,372/- and imposed a penalty of Rs.1,60,000/- and ordered for recovery of a sum of Rs.11,32,819/-.
After determination of the deficient stamp duty on the three documents by orders dated 21.01.2011 and 29.01.2013 passed by the Collector (Stamps) (supra), the deficient stamp duty was not deposited by the appellants and on an application filed by the respondents under Order VII, Rule 11 CPC, inter alia, indicating that in compliance of the orders passed by the Collector (Stamps), the amount of stamp duty and penalty has not been deposited and, therefore, the plaint was liable to be rejected under Order VII, Rule 11 CPC.
The trial court by its order dated 28.05.2013 directed that 4 the appellants be afforded one more opportunity to comply with the orders passed by Collector (Stamps) and directed to deposit the stamp duty and penalty by 05.07.2013 and ordered that otherwise the suit would be deemed to have been dismissed under Order VII, Rule 11 CPC.
The appellants filed application under Order XLVII, Rule 1 and 2 CPC seeking review of the order dated 28.05.2013 and, inter alia, submitted that even if the said decree is not properly stamped, still the plaintiffs are free to prove their case by producing other evidence and, therefore, the order dated 28.05.2013 ordering automatic dismissal of the suit could not be passed and sought for review of the said order.
The trial court by the impugned order dated 25.07.2013 rejected the application under Order XLVII and ordered for dismissal of the suit under Order VII, Rule 11(d) CPC.
It is submitted by learned counsel for the appellants that even if the appellants had failed to deposit the requisite stamp duty on documents as determined the Collector (Stamps), the suit could not have been dismissed by the trial court under Order VII, Rule 11(d) CPC. It was submitted that there is no provision of law, which bars a suit, whereby, if the order passed by the Collector (Stamps) is not complied with, the suit could be rejected and prayed that the impugned order dated 25.07.2013 and the order dated 28.05.2013, which ordered for automatic dismissal of the suit be set aside.
Learned counsel for the respondents pointed out that the orders passed by the Collector (Stamps) have not been 5 questioned and the same have become final. It was further submitted that all the three documents sought to be relied on by the plaintiffs seeking partition, having been held to be insufficiently stamped and as such are not admissible in evidence for any purpose and, therefore, the trial court was justified in dismissing the suit.
I have considered the rival submissions.
From the facts as indicated hereinbefore, it would be noticed that the suit for partition was filed by the plaintiffs claiming share in the properties belonging to one Prahalad Rai, regarding which, a decree of compromise had already been passed by a competent civil court on 09.03.1994 and the said decree having not been complied with, the present suit for partition by metes and bounds was laid. At the stage of admission and denial, the objections were raised regarding admissibility of certain documents on account of the same being unregistered and insufficiently stamped and the trial court rightly ordered for impounding of the said documents and referred the same to the Collector (Stamps). The decree dated 09.03.1994 was not referred to Collector (Stamps), which came to be referred by order of this Court in the writ petition filed by the appellants (supra). The Collector (Stamps) passed two separate orders and determined the deficient stamp duty and imposed penalty.
The consequence of the appellants complying with the orders of the Collector (Stamps) would have been that the objection regarding the documents being 6 unstamped/insufficiently stamped would have come to an end and if the admissibility was sought to be questioned only on account of the documents being insufficiently stamped/unstamped, then the documents were admissible as well. However, if the order passed by the Collector (Stamps) is not complied with only consequence is that the documents would be inadmissible in evidence. No consequence/effect whatsoever has been provided in law on the suit, if the order passed by the Collector (Stamps) is not complied with, though the amount of deficient stamp duty and penalty as determined by the Collector (Stamps) may be recoverable under the provisions of Rajasthan Stamp Act, 1998.
Under the provisions of Order VII, Rule 11(d) CPC a plaint can be rejected where the suit appears from the statement in the plaint to be barred by any law, as noticed hereinbefore, the non-compliance of orders of Collector (Stamps) does not make the suit barred by law and the appellants-plaintiffs would be well within their right to lead evidence in support of their suit, other than the documents which have been held to be inadmissible on account of the same being insufficiently stamped/unstamped.
As such, the order passed by the trial court on 28.05.2013 indicating that if the deficient stamp duty is not paid the suit would stand dismissed automatically under Order VII, Rule 11 CPC is ex facie incorrect; against the provisions of law; the same, therefore, cannot be sustained and is, therefore, set aside.
In consequence thereof, the dismissal of the suit by the 7 impugned judgment dated 25.07.2013 also cannot be sustained and to the extent that the suit has been rejected under Order VII, Rule 11(d) CPC, the same is set aside and the matter is remanded back to the trial court to proceed with the suit from the stage the suit was rejected by the impugned order dated 25.07.2013.
This Court has set aside the order dated 25.07.2013 only to the extent that the plaint has been rejected and rest of the contents and observations made by the trial court have not been adjudicated upon in the present appeal.
The appeal is partly allowed as indicated hereinbefore. The application seeking interim relief is disposed of. Record be sent back to the trial court forthwith.
The parties are directed to appear before the trial court on 03.03.2014. As the pleadings of the parties are already complete, it is expected that the trial court shall proceed with the suit as expeditiously as possible.
No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-