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Karnataka High Court

Seetharama Shetty vs Mr Monappa Shetty on 10 August, 2018

Author: Chief Justice

Bench: Dinesh Maheshwari

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                                        WP No.8506/2018


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF AUGUST , 2018

                        BEFORE

HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE

         WRIT PETITION NO.8506 OF 2018 (GM-CPC)

 BETWEEN:

 SEETHARAMA SHETTY
 S/O LATE SANJEEVA SHETTY,
 HINDU, AGED ABOUT 62 YEARS,
 RESIDING AT 'DADAS'
 ASAIGOLI, KONAJE,
 MANGALORE TALUK.
                                       ...PETITIONER
 (BY SRI.O.SHIVARAMA BHAT, ADVOCATE)

 AND:

 MR.MONAPPA SHETTY
 S/O LATE LOKAYYA SHETTY
 HINDU, AGED ABOUT 69 YEARS,
 RESIDING AT KOLALA BAIL HOUSE
 KAVOOR, MANGALORE-15.
 REP. BY NEXT FRIEND AND GUARDIAN
 MRS.HEMALATHA,
 W/O MONAPPA SHETTY,
 AGED ABOUT 56 YEARS,
 R/AT KOLALA BAIL HOUSE,
 KAVOOR, MANGALORE-15.
                                       ...RESPONDENT
 (BY SRI.MANMOHAN P.N., ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
 THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
 ORDER DATED 12.08.2017 PASSED BY THE V ADDITIONAL
 CIVIL JUDGE AND JMFC MANGALORE, PASSED IN
 O.S.NO.295/2013 VIDE ANNEXURE-A AND ETC.
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                                                  WP No.8506/2018



     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                              ORDER

The plaintiff of a suit for perpetual injunction (O.S.No.295/2013 in the Court of V Additional Civil Judge, Mangaluru), has preferred this writ petition for being aggrieved of the order dated 12.08.2017, whereby the Trial Court has declined his request to furnish the name of village relating to the property in question to the office of the District Registrar, to whom the document involved in the suit, being the alleged agreement for sale dated 29.06.1999, has been referred for assessment of deficient stamp duty, after being impounded under Section 33 of the Karnataka Stamp Act, 1957 ('the Act of 1957').

The relevant background aspects of the matter are that the document in question, being the alleged agreement for sale dated 29.06.1999, carries the description of property in its schedule as follows:

WP No.8506/2018

"SCHEDULE Non-agricultural immovable property situated in Village of Mangalore City within Mangalore Taluk sub Registration District of D.K. District and comprised in R.S.No. T.S.No. EXTENT WHICH PORTION 63-2 Nanja 1.02 Acres Whole.

BOUNDARIES:

        NORTH      : Survey Line S.No.63-1.
        SOUTH      : Water Channel (Survey line)
        EAST       : Survey Line And S.No.61-17B.
        WEST       : Survey Line and Water Channel."

By way of the order dated 10.11.2016, the Trial Court referred the said document to the District Registrar after allowing an application filed by the defendant/respondent under Sections 33 and 34 of the Act of 1957.

It appears that when the office of the District Registrar found that the name of the village where the property is situated was not mentioned in the document in question, a communication dated 30.03.2017 was sent from the said office requiring the name of the village concerned. Thereupon, 4 WP No.8506/2018 learned counsel for the plaintiff/petitioner filed a memo dated 26.04.2017 before the Trial Court, stating as under:

"MEMO FILED BY THE PLAINTIFF The undersigned Advocate for Plaintiff submits that the property mentioned in the agreement for sale is situated in Kavoor Village of interior part of Gandhi Nagar College Road of Mangalore Taluk in survey No.63-2 measuring 1-02 Acres."

The defendant filed objections to the said memo that the schedule of the agreement was blank about the name of village and the parties to the suit cannot insert any name of the village now.

The Trial Court has declined the submissions made by way of memo filed on behalf of the plaintiff/petitioner in its impugned order dated 12.08.2017, while observing as under:

"5. Perused the copy of Agreement dated 29.06.1999, there is no mention about the name of village. Defendant had denied the very execution of alleged Agreement of Sale dated 29.06.1999. Such being the case the plaintiff at this stage cannot by filing the memo state the name of the village of the property mentioned in said Agreement and such plea is not acceptable under the provision of law."

WP No.8506/2018

Having heard counsel for the parties and having perused the material placed on record, this Court is of the view that the order impugned calls for interference with necessary observations.

It is true that the name of the village is not mentioned in the agreement in question, but the particulars of the District, Taluk and City have been mentioned. The document has indeed been sent for calculating the stamp duty to the office of the District Registrar. For an appropriate processing of the document, for the purpose of calculating the stamp duty and other charges payable, supplying of the name of the village appears necessary. If such particulars are not supplied at this stage, the result would only be of obstructing further proceedings in the suit. On the other hand, if the proposition stated by the plaintiff is accepted only for the purpose of stamp duty and related changes, while keeping all other objections of the defendant open, the process as per the Act of 1957 shall be appropriately concluded at the present stage, so as to ensure progression of the trial of the suit.

WP No.8506/2018

The Trial Court appears to have passed the order impugned without regard to the consequences and appears not to have considered that the rules of procedure are intended to subserve the cause of justice and requisite steps in the aid of progression of the suit deserve to be taken, of course, without causing prejudice to any of the parties by any such procedure.

In the present case, as observed hereinabove, the process as contemplated under the Act of 1957 deserves to be completed for further progress of the suit; and in that regard, the particulars as stated by the plaintiff may be allowed to be taken into consideration, while keeping all the objections of the defendant open, to be examined at the relevant stage. Therefore, the order impugned disclosing jurisdictional error calls for interference and modification.

Accordingly, in modification of the impugned order dated 12.08.2017, it is directed that a copy of the memo filed by the plaintiff may be sent by the Trial Court to the office of the District Registrar for appropriate proceedings in accordance with law.

WP No.8506/2018

However, it is made clear that the order and proposition with reference to the name of village mentioned by the plaintiff/petitioner shall have relevance only for the purpose of calculation of deficit stamp duty and other charges but shall have no bearing on the merit consideration of the submissions of the parties, including the submissions of the defendant/respondent about the genuineness and the validity of the document in question and the corresponding right of the plaintiff/petitioner to contest such objections.

This petition stands disposed of accordingly.

Sd/-

CHIEF JUSTICE CA/vgh/BSR