Rajasthan High Court - Jaipur
Harish Chand Sharma vs Dr Purushottam Rathi on 13 January, 2023
Author: Sameer Jain
Bench: Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1802/2018
Harish Chand Sharma S/o Shri Babulal Sharma, R/o E-15,
Shastri Nagar, Ajmer Rajasthan
----Petitioner
Versus
Dr. Purushottam Rathi S/o Shri Chand Karan Rathi, R/o Near
Heropuck Showroom, New Fort Road, Chittorgarh Rajasthan
----Respondent
For Petitioner(s) : Mr. Sarthak Rastogi
For Respondent(s) : Mr. Kapil Prakash Mathur With
Mr. Anirudh Tyagi
HON'BLE MR. JUSTICE SAMEER JAIN
Judgment / Order
Reserved on: 05/01/2023
Pronounced On: 13/01/2023
1. Instant writ petition under Article 227 of the Constitution of
India has been filed by the plaintiff-petitioner assailing the order
dated 08/11/2017 passed by the learned Additional District Judge
No.1, Ajmer in Civil Suit No.10/2008 whereby the Misc.
Application filed by the defendant-respondent under Order 6 Rule
17 read with Section 151 CPC for making amendment in the
written statement has been allowed on a cost of Rs.3000/-.
2. The case of the plaintiff-petitioner as per the material
available on record is that the suit for specific performance was
filed in the year 2008 wherein the written statement was filed by
the defendant-respondent on 02/04/2008 and on 19/08/2008,
issues were framed. On 20/01/2010, the disputed agreement was
marked as an exhibit. On 11/03/2010, evidence on behalf of the
(Downloaded on 16/01/2023 at 11:58:22 PM)
(2 of 10) [CW-1802/2018]
plaintiff-petitioner stood completed. It was only on 21/05/2011
that the defendant-respondent filed application under Order 6 Rule
17 read with Section 151 CPC whereby it was submitted that the
document in question, i.e. the agreement, is an unregistered
document as well as insufficiently stamped and therefore, it is not
admissible in evidence. As such, amendment to this effect was
sought in the written statement which reads as under:-
^^25- ;g fd oknxzLr bdjkjukek jktLFkku LVkWEi ,DV 1998
ds vkfVZdy 5 ds vUrxZr vi;kZIr eqnzkad ij fu"ikfnr fd;s
tkus ds dkj.k lk{; esa i<+us ;ksX; ugha gS blh izdkj mDr
vf/kfu;e ds vkfVZdy 21 ds v/khu oknxzLr bdjkjukek
viathd`r gS vkSj bl vk/kkj ij Hkh oknh dk orZeku okn
mDr bdjkjukes dh fofufnZ"V ikyuk fd;s tkus ds vuqrks"k
izkIr djus ds fy;s fof/kd :i ls iks"kuh; ugha gSA**
3. The case of the defendant-respondent as per the material
available on record is that the amendment sought by him in the
written statement involves point of law and is vital, in the interest
of justice, for proper adjudication of the case and comes within
the purview of Order 6 Rule 17 CPC.
4. The learned trial court allowed the said application vide
impugned order dated 08.11.2017, with a cost of Rs.3000/-,
against which the present writ petition has been filed.
5. Learned counsel for the plaintiff-petitioner submitted that the
present writ petition should be allowed as the application of the
defendant-respondent was filed at a belated stage without any
legitimate and sufficient explanation, especially when the issue
was purely legal and was in in the knowledge of the defendant-
respondent. It was contended that the application was belated on
account of the fact that the agreement in question was already
marked as exhibit on 20/01/2010. Learned counsel submitted that
(Downloaded on 16/01/2023 at 11:58:22 PM)
(3 of 10) [CW-1802/2018]
as per the judgment rendered by coordinate Bench of this Court in
Jagdish Vs. Smt. Deep Shika Gar: 2013(3) RLW 2562 (Raj.)
as well as the judgments rendered by Hon'ble the Apex Court in
Shyamal Kumar Roy Vs. Sushil Kumar Agarwal: (2006) 11
SCC 331; Vidyabai & Ors. Vs. Padmalatha & Ors.: (2009) 2
SCC 409 and The State of Bihar & Ors. Vs. Modern Tent
House & Ors.: (2017) 8 SCC 567, it has time and again been
held that in a suit for specific performance, even if the agreement
is insufficiently stamped but if admitted in evidence, no objection
or amendment can be permitted at a later stage. Learned counsel
contends that the defendant-respondent cannot turn around and
contend that the suit document is inadmissible in evidence,
specially when the same is marked as an exhibit. Learned counsel
further submit that Section 40 of Rajasthan Stamp Act, 1998
restricts the defendant-respondent from questioning a document
after its admission in evidence by the Court.
6. Per-contra, learned counsel for the respondent submitted
that as per provisions of Section 37, 38, 39 and 40 of the
Rajasthan Stamp Act, 1998 and in the facts & circumstances of
the case and as per provisions of Order 6 Rule 17 CPC,
amendment can be requested at any stage and in the case in
hand, the objections raised and the amendment sought are in
conformity with the Rajasthan Stamps Act, 1998. He further
submitted that the order impugned is not altering the nature of
the suit. Learned counsel further submitted that the learned trial
court, for reconciling the matter and on the question of delay, has
imposed a cost of Rs.3000/-. Learned counsel has placed reliance
upon the judgments rendered by the Apex Court in B.K.
Narayana Pillai Vs. Parmeshwaran Pillai & Ors.: (2000) 1
(Downloaded on 16/01/2023 at 11:58:22 PM)
(4 of 10) [CW-1802/2018]
SCC 712 and in Usha Balashaheb Swami & Ors. Vs. Kiran
Appaso Swami & Ors. (Civil Appeal No.2019 of 2007),
decided on 18/04/2007. While placing reliance upon the same, he
submitted that an amendment may be permitted at any stage, as
per the dictum of the Apex Court, if the proposed amendment
does not alter or substitute a new cause of action. The delay in
filing application for amendment can be compensated by costs. He
further submitted that power to allow the amendment is wide and
can be exercised at any stage of the proceedings in the interest of
justice and no hyper technical approach should be adopted, rather
liberal approach is warranted. The amendment is basically to avoid
multiplicity of the litigation. In the light of above, he submitted
that the writ petition should be dismissed with heavy costs.
7. Heard the arguments advanced by learned counsel for both
the sides, scanned records of the writ petition and considered the
judgments cited at bar.
8. Before adverting to the issue, it is imperative to note
provisions of Order 6 Rule 17 read with Section 151 CPC, which
are reproduced as under:-
"Order 6 Rule 17 : Amendment of pleadings.--
The Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all
such amendments shall be made as may be necessary
for the purpose of determining the real questions in
controversy between the parties :
Provided that no application for amendment shall
be allowed after the trial has commenced, unless the
Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter
before the commencement of trial."
(Downloaded on 16/01/2023 at 11:58:22 PM)
(5 of 10) [CW-1802/2018]
9. It is also important to reproduce the provisions of Sections
37 to 40 of the Rajasthan Stamp Act 1998:-
37. Examination and impounding of
instruments (1) Every person having by law or
consent of parties authority to receive evidence, and
every person incharge 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 the State when such
instrument was executed or first executed :
Provided that,-
(a) nothing herein contained shall be deemed to
require any Magistrate or Judge of a Criminal Court to
examine or impound, if he does not think fit so to do,
any instrument coming before him in the course of
any proceeding other than a proceeding under
Chapter IX or Part D of Chapter X of the Code of
Criminal Procedure, 1973 (Act No. 2 of 1974);
(b) in the case of a Judge of a High Court, the duty of
examining and impounding any instrument under this
section may be delegated to such officer as the Court
appoints in this behalf.
(3) For the purposes of this section in cases of
doubt,-
(a) the State Government may determine what offices
shall be deemed to be public offices; and
(b) the State Government may determine who shall
be deemed to be persons incharge of public offices.
(4) When a person incharge of a public office, during
the course of inspection or otherwise, detects from an
instrument or copy thereof or when it appears
therefrom to the person referred to in sub-section (1)
that the instrument is not duly stamped, such person
shall forthwith make a reference to the Collector in
that matter.
(5) The Collector may, suo moto or on such
reference, call for the original instrument for
ascertaining whether it is duly stamped and the
(Downloaded on 16/01/2023 at 11:58:22 PM)
(6 of 10) [CW-1802/2018]
instrument so produced shall be deemed to have
been produced or come before him in the
performance of his functions and in case the original
instrument is not produced within the period specified
by the Collector, he may require the payment of the
proper duty or the amount required to make up the
same together with the penalty under section 44.
38. Special provisions as to unstamped
receipts-Where any receipt chargeable with a duty
not exceeding one rupee is tendered to or produced
before any officer unstamped in the course of audit of
any public account, such officer may in his discretion,
instead of impounding the instrument, require a duly
stamped receipt to be substituted therefore.
39. Instruments not duly stamped inadmissible
in evidence, etc -No instrument chargeable with
duty under this Act 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, -
(a) any such instrument shall, subject to all just
exceptions, be admitted in evidence on payment of, -
(i) the duty with which the same is chargeable, or in
the case of an instrument insufficiently stamped, of
the amount required to make up such duty, and
[(ii) a penalty at the rate of two percent of the
amount of the deficient duty per month or part
thereof for the period during which the instrument
remained insufficiently stamped or twenty five
percent of the deficient stamp duty, which is higher,
but such penalty shall not exceed to two times of the
deficient stamp duty]
(b) where a contract or agreement of any kind is
effected by correspondence consisting of two or more
letters and any one of the letters bears the proper
stamp; the contract or agreement shall be deemed to
be duly stamped.
(c) nothing herein contained shall prevent the
admission of any instrument as evidence in any
proceeding in a criminal court, other than a
proceedings under Chapter IX or Part D of Chapter X
of the Code of Criminal Procedure, 1973 (Act No. 2 of
1974).
[(d) nothing herein contained shall prevent the
admission of any instrument in any court when such
(Downloaded on 16/01/2023 at 11:58:22 PM)
(7 of 10) [CW-1802/2018]
instrument has been executed by or on behalf of the
Government or where it bears the certificate of the
Collector as provided by section 36 or any other
provision of this Act.]
(e) nothing herein contained shall prevent the
admission of a copy of any instrument or of an oral
account of the contents of any instrument, if the
stamp duty or a deficient portion of the stamp duty
and penalty as specified in clause (a) is paid.
(f) nothing herein contained shall prevent the
admission of any instrument in evidence in any court
when stamp duty on such instrument has already
been paid in advance in the form of a consolidated
lump sum.
(g) xxxxx
40. 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 71, be called in question at any
stage of the same suit or proceeding on the ground
that the instrument has not been duly stamped."
10. On perusal of the above said provisions, it is abundantly
clear that the amendments in the pleadings is permissible at any
stage of the suit proceedings, but with a rider that such
amendments are necessary for the purpose of determining the
real question and controversy between the parties. Under Order 6
Rule 17 of CPC, a proviso was also added in the year 2002
whereby a rider was introduced that the Court has to draw
conclusion that if due diligence was not carried out while filing
application for amendment, the same should not be considered. In
the case in hand, it is true that on 20/01/2010, the alleged
agreement was marked as an exhibit and admitted as evidence
and the evidence was closed on 11/03/2010. The application for
amendment was only filed on 21/05/2011 i.e. after lapse of
approximately one year. The learned trial court has allowed the
same on deposit of a cost of Rs.3000/-. The learned trial court,
(Downloaded on 16/01/2023 at 11:58:22 PM)
(8 of 10) [CW-1802/2018]
while considering provisions of the Stamp Act, judgments of the
higher courts and considering that the document in question is
deficitly stampped, and if stamp duty is paid thereupon no
prejudice will be caused, has allowed the amendment with a cost
of Rs.3000/- to compensate the delay.
11. In the opinion of this Court, as per provisions of Order 6 Rule
17 CPC amendment can be carried out at any stage. In the case in
hand, the learned trial court has held that for determination of the
real questions and controversy, the amendment is necessary. Even
the mandate of Sections 37 to 39 of the Rajasthan Stamp Act,
1998 reproduced (supra) cast an obligation upon the Court that if
the instruments are not duly stamped, the same should be
examined and impounded. If the instruments are not duly
stamped, they cannot be considered inadmissible in evidence.
12. A reading of the provisions of Sections 37 to 40 of the
Rajasthan Stamp At, 1998 (supra), a pervasive, constructive and
harmonious interpretation confirms the point that a document with
deficit stamp duty should be duly considered. The same is
inadmissible piece of evidence till appropriate stamp duty is
deposited on the same.
13. In the light of the above, the amendment proposed by the
respondent, which was allowed by the learned trial court, was
justified.
14. The judgments as cited by learned counsel for the petitioner,
referred above, are on different facts. The provisions of Section 40
of the Rajasthan Stamp Act, 1998 cannot be read in isolation but
have to be read in conjunction with the provisions of Sections 37
to 39 of the Rajasthan Stamp Act, 1998. The provisions of Order 6
Rule 17 of CPC categorically permit for raising of amendment "at
(Downloaded on 16/01/2023 at 11:58:22 PM)
(9 of 10) [CW-1802/2018]
any stage". There is no embargo, restriction or constraint which is
imposed under Order 6 Rule 17 of CPC. The only requirement
which is to be met out is that the amendment is necessary for
determination of real questions. In the factual scenario read with
legal provisions of the Stamps Act in the suit for specific
performance, the amendment allowed by the learned trial court
was quite necessary and essential for determining the real
question and controversy and while passing speaking order, the
learned trial court has come to such conclusion.
15. The judgments cited by learned counsel for the petitioners
are primarily on inadmissibility of the document. In the case in hand, there is no dispute regarding making the present document, i.e. the agreement in question, as an exhibit and therefore, the judgments cited are distinguishable.
16. The judgments of B.K. Narayana Pillai (supra) and Usha Balashaheb (supra), as cited by learned counsel for the defendant-respondent, are squarely applicable on the point that the purpose and object of the provisions of Order 6 Rule 17 of CPC is to allow either party to alter or amend his pleading which is "just" and "necessary" to resolve the real controversies. The Apex Court has held that liberal approach should be the general rule, particularly in the cases where the other side can be compensated with costs and technicalities of the law should not be permitted to hamper the Court in the administration of justice. The amendments in the pleadings, in the opinion of this Court, was rightly allowed to avoid the multiplicity of litigation. It is well settled that rules of procedure are hand-maid of justice and therefore, even if there is some delay, the trial Court has rightly (Downloaded on 16/01/2023 at 11:58:22 PM) (10 of 10) [CW-1802/2018] imposed cost rather than to decline the amendment, as such denial would have led to denial of justice.
17. Relying upon the reasoning given by the learned trial court, considering the provisions of Sections 37 to 40 of the Rajasthan Stamps Act, 1998 as well as the provisions of Order 6 Rule 17 CPC and the judgment of the Apex Court in B.K. Narayana Pillai (supra), more particularly para 3 & 4, this Court is inclined to dismiss the present writ petition and uphold the order impugned.
18. Consequently, the present writ petition is dismissed and the order impugned is upheld. All pending application stand dismissed.
19. The interim order stands vacated.
(SAMEER JAIN),J Raghu (Downloaded on 16/01/2023 at 11:58:22 PM) Powered by TCPDF (www.tcpdf.org)