Andhra Pradesh High Court - Amravati
Pasani Venkata Swamy vs Tirumani Nageswara Rao on 8 November, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.1727 of 2022
Between:
Pasani Venkata Swamy, S/o China Venkanna,
aged about 50 years, R/o Kalaparru village,
Kalidindi Mandal, Krishna District.
... Petitioner.
Versus
Tirumani Nageswara Rao, S/o Marayya, aged
about 74 years, R/o Pallepalem village,
Kalidindi Mandal, Krishna District and
another.
... Respondents.
Counsel for the petitioner : Sri Kambhampati Ramesh Babu
Counsel for respondents : ---
ORDER
1st Defendant in the suit filed the above revision against the order dated 12.07.2022 in I.A.No.96 of 2019 in O.S.No.138 of 2016 on the file of Junior Civil Judge, Kaikaluru.
2. 1st Respondent/Plaintiff filed suit O.S.No.138 of 2016 against the revision petitioner and 2nd respondent for perpetual injunction.
2
3. In the plaint, it was contended interalia that plaintiff is the absolute owner of Ac.1.25 cents in R.S.No.452/7, 452/8, 452/9 and 452/10 of Pedalanka village; that 1st defendant is resident of Kalaparru village and 2nd defendant, close associate of 1st defendant, approached the plaintiff in the first week of August, 2016 and asked him to sell Ac.0.05 cents for the purpose of constructing a shed, however, plaintiff refused; that on 05.09.2016, defendants tried to interfere with the plaintiff's possession and hence, filed the suit.
4. 1st Defendant filed written statement and contended interalia that he purchased Ac.0.05 cents of land from the plaintiff under a sale deed dated 29.01.2010 and he has been in possession and enjoyment of the property and also constructed a house and residing therein and he also obtained electricity service connection from APSPDCL.
5. Pending the suit, defendants filed I.A.No.96 of 2019 under Section 38 and 40 of the Indian Stamp Act, 1899 to send the sale-cum-confirmation deed dated 29.01.2010 to the District Registrar, Krishna District to impound the document. 3
6. Trial Court by order dated 12.07.2022 dismissed the application. Against the said order, the present revision is filed.
7. This Court ordered notice and also permitted the learned counsel for petitioner to take out personal notice to 1st respondent, however, the notice was returned with endorsement "unclaimed", as such notice is deemed to be served. None appeared on behalf of 1st respondent.
8. Sri Kambhampati Ramesh Babu, learned counsel for the revision petitioner would submit that document sought to be impounded is filed along with written statement as document No.1, however the year in the date was wrongly mentioned as 1999 instead of 2010. He also would submit that since the document unstamped, he filed the application for impounding and the Court is duty bound to send the document to the District Registrar for impounding and cannot decided the validity of document.
9. The point for consideration is: Whether the trial court failed to exercise its jurisdiction? and if so whether the order under revision is liable to be set aside? 4
10. Suit is filed for injunction simplicitor. Defendants claimed title and possession to Ac.0.05 cents out of plaint schedule property by virtue of document dated 29.01.2010. Since the document is not sufficiently stamped, the present application is filed to impound the document.
11. It is necessary to refer the relevant provisions under the Indian Stamp Act, 1899 (for brevity 'the Act').
"33. Examination and impounding of Instruments :--
(1) Every person having by law or consent of parties authority to receive evidence, and every person-
in-charge of a public office, except an officer of a police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed :
Provided that: .......
35. Instruments Not Duly Stamped In Admissible In Evidence, etc :--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:
Provided that ....5
38. Instruments impounded how dealt with:--(1) When the person impounding an instrument under Section 33 has, by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by Section 35 or of duty as provided by Section 37, he shall send to the Collector, an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.
12. In Chintalapudi Annapurnamma and Ors. Vs. Andukuri Punnayya Sastry1, while answering a reference made by the learned single Judge of the composite High Court, as to two decisions rendered by this Court in Gulam Hussain V. Additional Rent Controller, Hyderabad (AIR 1977 AP 397) and N. Jagannadham Vs. V. Mangamma [1997 (2) ALD 549] conflicting with each other, the Division Bench of the composite High Court held thus:
"18. In our view, the observations and the reasoning in the above decision do not run contrary to the other decisions cited (supra) i.e. Jagannadham v. V. Mangamma, B. V.R. Reddy v. The Adoni Co-operative Central Stores; and Balkrishna v. Board of Revenue (supra). The learned Judge had only held that admission of document under Sections 35 and 38 arises only after the payment of the penalty and duty upon the document sought to be admitted. This proposition is unexceptionable. As could be seen from the relevant 1 MANU/AP/0395/2000 6 provisions of the Act viz., Sections 33, 35 and 38, a document can be impounded and the duty to be paid with or without penalty can be determined. Further every exigible document is prohibited from being admitted under Section 35 unless such duty levied is paid. The next step that has to be taken by the civil Court is as provided under subsection (1) of Section 38. In other words, the admission of the document and the procedure contemplated under sub-section (1) of Section 38 arises only after the payment of duty with penalty.
19. In our view the observations of the learned single Judge in Gulam Hussain v. Additional Rent Controller, Hyderabad (supra), are only to the effect and extent, that admission of the document as contemplated under Sections 35 and 38 arises only after payment of penalty and duty and the same is inconsonance with the provisions of law and thus the question framed for consideration as already extracted above alone was answered. But, the position as to what should happen if the party, instead of seeking admission of the document in evidence, prays the Court to send the document for the purpose of having certified by the Collector under Section 40, was not gone into. It does not appear from the facts that the petitioner-tenant filed an application to send it to the Collector under Section 38(2) for the purpose of its eventual admission. Hence, the ultimate conclusion is at variance with the other two decisions.
20. In our view, it should be understood that Section 35 and sub-section (1) of Section 38 only contemplate the procedure that is to be followed after impounding and admission of the document in evidence, on payment of levied duty and penalty. Sub-section (2) of Section 38 deals with every other case where after impounding, the levied duty is not paid or offered to be paid and the document is not admitted in evidence. In the latter case, the document has to be sent to the Collector without admitting the same.
21. Obviously, the other decisions referred to supra would make abundantly clear in the light of the scheme of the Act that the civil Court or Tribunal can impound a document and levy duty and also penalty on the document sought to be admitted in evidence which is found to be exigible for any reason. There lies the option 7 of the party either to pay the duty together with penalty and get the document admitted or simply make an application to the Court to send the document to the Revenue Divisional Officer and to defer the admission till then. (emphasis is mine)
22. The second option is obviously under sub-section (2) of Section 38 of the Act. It is needless to observe that inspite of such duty being levied by the Court, if the party makes an application under Section 38(2), he would be doing so at the risk of not getting the document admitted by virtue of the explicit embargo created under Section 35 of the Act. The scheme of the Act does not indicate that the Court cannot compel the party to pay the duty and penalty, and get the document admitted. To put it in another way, as the admission of any document is at the discretion of the party, so also it is the discretion of the party to pay the duty and penalty as determined by the civil Court or other public authority and failure to do so, would only result in non-admission of the document So payment of duty after impounding by the civil Court is the date line between Section 38(1) and 38(2). In case, Section 38(1) is applied, procedure under Section 39 should be followed by the Collector and in case of 38(2), procedure under Section 40 has to be followed.
23. Therefore, in our view there is no real conflict between the two decisions viz., Gulam Hussain v. Additional Rent Controller, Hyderabad and N. Jagannadham v. V. Mangamma (supra) as far as the principle goes. But, the conclusion reached in the former case should be confined to the particular facts of the case."
13. Thus, once an application is filed to refer the document for impounding the Civil Court is duty bound to refer the same to the District Registrar who inturn will ascertain the stamp duty and penalty basing on the recitals in the document. In this case on hand Trial Court while dismissing 8 the application did not consider the scope of Sections 33 and 35 and other provisions of the Stamp Act.
14. The scope of revision under Article 227 of the Constitution of India was considered by Hon'ble Apex Court in Surya Dev Rai vs. Ram Chander Rai and Ors.2. Since the trial Court failed to exercise jurisdiction vested with it this court is of the considered opinion that the order under revision is liable to set aside.
15. Accordingly, the Civil Revision Petition is allowed and the order dated 12.07.2022 in I.A.No.96 of 2019 in O.S.No.138 of 2016 on the file of Junior Civil Judge, Kaikaluru is set aside. I.A.No.96 of 2019 is allowed and the trial Court shall send the document to the District Registrar for impounding the same in accordance with law. No costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 8th November, 2022 PVD 2 (2003) 6 SCC 675