Karnataka High Court
Sri C L Harish Bhagavan vs Smt Noor Ahmadi Khanum on 5 March, 2014
Author: N.Kumar
Bench: N Kumar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 5th day of March, 2014
BEFORE
THE HON'BLE MR. JUSTICE N KUMAR
W.P.NO.1808 OF 2012 (GM-CPC)
BETWEEN
SRI C L HARISH BHAGAVAN
S/O LATE LAKSHMINARAYANA SETTY
AGED 60 YEARS
R/AT DOOR NO.1/9
K.R.ROAD, BASAVANAGUDI
BANGALORE ...PETITIONER
(By Sri D N MANJUNATH, ADVOCATE)
AND
SMT. NOOR AHMADI KHANUM
W/O SHRI NOOR PASHA,
MAJOR IN AGE, R/AT DOOR NO.7/1,
MARAPPA BLOCK, J.C.NAGAR,
BANGALORE
REPRESENTED BY HER
GENERAL POWER OF ATTORNEY HOLDER
SRI NOOR TAREEN ...RESPONDENT
(By SRI S.M. ANEES AHMED FOR
M/s. SAAN LAW ASSTS, ADVOCATES)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
2
CALL FOR THE ENTIRE RECORDS PENDING ON THE FILE
OF PRL. CIVIL JUDGE, SENIOR DIVISION, MYSORE IN
O.S.NO.437/2003; ISSUE A WRIT OF CERTIORARI AS
AGAINST THE ORDER PASSED BY THE PRL. CIVIL JUDGE,
SR. DN., MYSORE ON AN APPLICATION FILED U/S 33 R/W
SECTION 34 OF THE KARNATAKA STAMP ACT DTD.8.9.11
BY QUASHING THE IMPUGNED ORDER PASSED THEREIN
HOLDING THAT THE IMPUGNED IS ILLEGAL,
UNSUSTAINABLE AND WITHOUT JURISDICTION AND
GRANT OR ISSUE APPROPRIATE WRIT OR DIRECTION BY
QUASHING THE ORDER PASSED BY THE TRIAL COURT IN
O.S. NO.437/2003 DTD.8.9.11 VIDE ANNEX-K.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This is a plaintiff's Writ Petition challenging the order passed by the trial Court recalling the marking of the document and impounding the document and directing payment of duty and penalty.
2. The plaintiff filed a suit for specific performance of the agreement of sale. Defendant was served. She remained absent. Therefore, she was placed ex-parte. Plaintiff adduced evidence. He produced the agreement of sale and also deed of assignment. They were marked without any 3 objection and an ex-parte decree came to be passed. Thereafter, defendant filed an application for setting aside the decree. It was allowed. The decree was set aside. She was permitted to file the written statement. Then she filed an application under Sections 33 and 34 of the Karnataka Stamp Act requesting the Court to recall the order marking the assignment deed and also requested the Court to impound the said document and collect duty and penalty. The said application is allowed. Aggrieved by the said order, the plaintiff is before this Court.
3. Learned counsel for the petitioner assailing the impugned order contends that, once a document is marked without objection, the said order cannot be reviewed either by the very same Court or by the Appellate Court or the Revisional Court. Therefore, the trial Court was not justified in recalling the said order.
4. It is true that once a document is marked in evidence, though it is insufficiently stamped, if the objection 4 is not taken at the time of marking of the document, the Court which marked the document at a subsequent stage or the Appellate Court cannot recall the order marking the document. However, in view of Sections 33 and 34 of the Karnataka Stamp Act, when a document which is insufficiently stamp which is tendered in evidence, an obligation is cast on the Court to impound the document, collect duty and penalty and send the papers to the Deputy Commissioner before whom the party can plead for reduction of penalty. It is nothing to do with the marking of the document. However, the trial Court has proceeded on the assumption that, as the document is insufficiently stamped and now that the defendant is pointing out the said defect, the marking of the document is to be recalled, document is to be impounded and duty and penalty is to be collected. The order holding that the document which is marked cannot be looked into in evidence because it is insufficiently stamped is not correct. Once the document is marked, the Court has to look into the said document and proceed with the case on 5 merits. However, that does not come in the way of the Court impounding the document, collecting duty and penalty and remitting the same to the Deputy Commissioner. To that extent the Writ Petition succeeds.
(i) Writ Petition is allowed in part.
(ii) The marking of the document, namely the
deed of assignment as Ex.P2 stands.
(iii) The trial Court shall decide the suit on merits by looking into the said document.
(iv) However, the order directing payment of duty and penalty stands and the same shall be recovered in a manner known to law. That shall not be a condition precedent for looking into Ex.P2.
Sd/-
JUDGE ckl/-