Karnataka High Court
Vincent D Almeida vs Laxmi Kulathi W/O Bachal Kulal on 8 April, 2026
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NC: 2026:KHC:19205
WP No. 30428 of 2019
HC-KAR
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO. 30428 OF 2019 (GM-CPC)
BETWEEN:
1. VINCENT D ALMEIDA
S/O SALVADOR D ALMEIDA
AGED ABOUT 60 YEARS
R/A JOVIAL
NEAR CHERKADI CO-OPERATIVE SOCIETY
P.O. CHERKADI - 576 215
UDUPI DISTRICT
2. ASHOK MADIVALA
S/O ANANTHA MADIVALA
AGED ABOUT 57 YEARS
R/A ANANTHA LAKSHMI KRIPA
Digitally signed KANNARU VILLAGE
by
SHARADAVANI P.O.CHERKADI - 576 215
B
Location: High UDUPI DISTRICT
Court of
Karnataka
...PETITIONERS
(BY SRI. VYASA RAO K.S., ADVOCATE)
AND:
1. LAXMI KULATHI W/O BACHAL KULAL
SINCE DEAD RESPONDENTS NO.2 TO 4 ARE
TREATED AS LRS OF R1
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2. RAGHU KULALA
S/O BACHA KULAL
AGED ABOUT 56 YEARS
3. SHARADHA KULALTHI
D/O BACHA KULAL
AGED ABOUT 55 YEARS
4. BABY KULALTHI
D/O BACHA KULAL
AGED ABOUT 52 YEARS
ALL ARE R/AT ADJIL
AROOR VILLAGE
KUNJAL
POST: AROOR - 576 213
...RESPONDENTS
(BY SRI. HAREESH BHANDARY T., ADVOCATE FOR R2 TO R4
VIDE ORDER DATED 25.03.2025,
R2 TO R4 ARE TREATED AS LRS OF DECEASED R1)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS AND QUASH THE IMPUGNED ORDER ANNX-A DATED
07.06.2019 PASSED BY THE II ADDL. SENIOR CIVIL JUDGE
AND JMFC, UDUPI ON I.A.NO.3 IN O.S.NO.96/2017 AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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WP No. 30428 of 2019
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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
1. The plaintiffs have filed this writ petition challenging the Order dated 07.06.2019 passed by the II Additional Senior Civil Judge and J.M.F.C., Udupi (hereinafter referred to as the 'Trial Court') on I.A.No.III filed in O.S.No.96/2017.
2. Sri.Vyasa Rao K.S, learned counsel appearing for the petitioners submits that the petitioners have filed suit for specific performance of the agreement of sale against the respondents. In the said suit, the plaintiff was examined as PW1 and got marked agreement of sale as Ex.P1 which was accepted by the Trial Court and admitted as evidence. It is further submitted that the defendant raised objections for admitting the said agreement of sale i.e., Ex.P1 by filing an application under Sections 33 and 34 of the Karnataka Stamp Act, 1957 (for short hereinafter referred to as 'the Act') contending that the instrument is insufficiently stamped. It is also submitted that the Trial -4- NC: 2026:KHC:19205 WP No. 30428 of 2019 HC-KAR Court under the impugned order upheld the contention of the defendant contrary to Section 35 of the Act, as once, the instrument is admitted in the evidence, the only remedy lies is to challenge the same as provided in Section 58 of the Act and not before the same Court. In support of his contention, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Jevar Chand and Ors. v. Pukhraj Surana1 and the decision of this Court in the case of Sakamma v. Pavadi Gowda and Others2 and seeks to set aside the impugned order while allowing the writ petition.
3. Per contra, Sri.Hareesh Bhandary T, learned counsel appearing for respondent Nos.2 to 4 supports the impugned order of the Trial Court and submits that the order of admitting the instrument was exparte. Thereafter, the defendant entered appearance, filed written statement and on noticing the deficiency of stamp duty paid, filed an application, which has been rightly considered by the Trial 1 AIR 1961 SC 1655 2 (1998) ILR (Karnataka) 3842 -5- NC: 2026:KHC:19205 WP No. 30428 of 2019 HC-KAR Court under the impugned order. Hence, he seeks to dismiss the writ petition.
4. I have heard the arguments of learned counsel for the petitioners and learned counsel for the respondents and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced and the records placed before the Court.
5. The petitioner filed O.S.No.96/2017 for relief of specific performance of the agreement of sale dated 30.05.2012 and also sought for alternate relief. The material on record would indicate that the plaintiff adduced the evidence as PW1, got marked agreement of sale dated 30.05.2012 as Ex.P1. The records further indicate that, at the time of adducing the evidence, the defendants were served and they remained absent and later they filed an application to set aside the exparte proceedings and thereafter, filed the written statement denying the assertion made in the plaint. It is also noticed -6- NC: 2026:KHC:19205 WP No. 30428 of 2019 HC-KAR that the defendants have filed an application under Sections 33(1) and 34 of the Act seeking to impound the agreement of sale dated 30.05.2012 i.e., Ex.P1 on the ground that the agreement of sale is insufficiently stamped. The Trial Court under the impugned order has allowed the said application by considering the decisions on the point.
6. The primary contention of the petitioners is that, once the document is admitted in the evidence, it is not open for the party to challenge the same before the same Court. But, he has a remedy under Section 35 of the Act. For easy reference, Section 35 of the Act is extracted herein;
"35. Admission of instrument where not to be questioned.- Where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."-7-
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7. A perusal of the aforesaid Section makes it very clear that, where an instrument has been admitted in the evidence, such admission shall not, except as provided in Section 58 of the Act shall be called in question at any stage of the same suit or the proceedings on the ground that the instrument has not been duly stamped. Hence, the contention of the learned counsel for the petitioners is that the defendants cannot raise insufficient stamp duty in the said proceedings once the instrument is admitted in the evidence.
8. In view of the aforesaid contention it would be useful to refer to the decision of the Hon'ble Supreme Court in the case of G.M. Shahul Hameed v. Jayanthi R. Hegde, 3 the relevant paragraphs are extracted below:
"27. On the face of such an order, it does not leave any scope for doubt that on the date the GPA was admitted in evidence and marked as an exhibit, the trial court did not deliberate on its admissibility, much less applied its judicial mind, resulting in an absence of judicial determination. In the absence of a "decision" on the question of admissibility or, in 3 (2024) 7 SCC 719 -8- NC: 2026:KHC:19205 WP No. 30428 of 2019 HC-KAR other words, the trial court not having "decided"
whether the GPA was sufficiently stamped, Section 35 of the 1957 Act cannot be called in aid by the respondent. For Section 35 to come into operation, the instrument must have been "admitted in evidence" upon a judicial determination. The words "judicial determination" have to be read into Section
35. Once there is such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by Section 35. However, in a case of "no judicial determination", Section 35 is not attracted.
28. In the light of the aforesaid reasoning of the trial court of admitted failure on its part to apply judicial mind coupled with the absence of the counsel for the appellant before it when the GPA was admitted in evidence and marked exhibit, a factor which weighed with the trial court, we have no hesitation to hold that for all purposes and intents the trial court passed the order dated 19-10-2010 in exercise of its inherent power saved by Section 151 CPC, to do justice as well as to prevent abuse of the process of court, to which inadvertently it became a party by not applying judicial mind as required in terms of Sections 33 and 34 of the 1857 Act. We appreciate the approach of the trial court in its judicious exercise of inherent power.
29. Reference to Section 58 of the 1957 Act by the learned counsel for the respondent is without substance. The clear language of Section 58 refers to a situation, where an order is passed admitting an instrument in evidence as duly stamped or as one not requiring a stamp, for its attraction. As is evident from a bare reading of the order dated 19-10-2010, the trial court did neither hold the GPA as duly stamped or as not requiring a stamp and, therefore, its applicability was not attracted. -9-
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30. We may not turn a blind eye to the fact that the Revenue would stand the risk of suffering huge loss if the courts fail to discharge the duty placed on it per provisions like Section 33 of the 1957 Act. Such provision has been inserted in the statute with a definite purpose. The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the State. The courts ought to ensure that compliance with all substantive and procedural requirements of a statute akin to the 1957 Act are adhered to by the interested parties. This duty of the court is paramount, and any deviation would set a detrimental precedent, eroding the integrity of the legal system. Thus, the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the rule of law."
9. The enunciation of law laid down by the Hon'ble Supreme Court in the aforesaid decision makes it clear that the Section 35 of the Act would only come into operation when the document is admitted into evidence upon 'judicial determination' and once the said document is admitted upon judicial determination, the same cannot
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NC: 2026:KHC:19205 WP No. 30428 of 2019 HC-KAR be questioned except as provided under Section 35 of the Act. It was further held that the language of Section 58 refers to a situation, where an order is passed expressly stating that an instrument is admitted in evidence as 'duly stamped' or as one 'not requiring a stamp', and until such a specific order is made, Section 58 of the Act cannot be invoked.
10. In the instant case, the Ex.P1 was marked by an ex parte order without any judicial determination with regard to its admissibility. Therefore, the provisions under Section 35 and 58 of the Act will not be attracted as the admission of the document was without any 'judicial determination'. Hence, the Trial Court has rightly considered that the document in Ex.P1 was insufficiently stamped and exercised its powers under Section 33 of the Act to impound the same, which does not call for any interference.
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11. Section 33 of the Act confers power on every such person having law or consent of the parties authority to receive evidence and every person in-charge of a public office except a police officer, to impound a document that he receives in performance of his duties, if the document is not duly stamped. The said power is always available to be exercised unless after judicial determination for admissibility of a document, a document has been admitted as 'duly stamped' or 'not requiring stamp'. Hence, unless such an exercise of judicial determination is undertaken before admitting a document, the power under Section 33 of the Act is always available to be exercised in order impound documents even if they have been already admitted.
12. Insofar as the contention raised by the petitioners by placing reliance on the aforesaid decisions of the Hon'ble Supreme Court and of this Court, I am of the considered view that the said decisions have no application to the facts and circumstances of the case.
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13. With the aforesaid observations, I am of the considered view that the Trial Court was fully justified in allowing the application. The writ petition is devoid of merit and the same is rejected.
Sd/-
(VIJAYKUMAR A. PATIL) JUDGE GH List No.: 1 Sl No.: 9