Madhya Pradesh High Court
Amit Dixit vs Smt.Sadhana Singh on 18 September, 2015
WP.1368/2011 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Writ Petition No. 1368/2011
Amit Dixit
Vs.
Smt. Sadhana Singh & Ors.
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Shri B. Raj Pandey, Advocate for the petitioner.
Shri V.K. Bhardwaj, Senior Advocate with Mrs.
Sudha Shrivastava, Advocate for respondent No.5.
None for the other respondents despite service.
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ORDER
( 18 / 09 /2015 ) This petition filed under Article 227 of the Constitution takes exception to the order dated 27.01.2011 (Annexure P/1), whereby the court below has rejected the Miscellaneous Appeal of petitioner filed under Order 43 Rule 1 CPC and confirmed the order of trial court dated 05.02.2010, whereby application of petitioner under Order 39 Rule 1 & 2 CPC was rejected by trial court.
2. Shri B. Raj Pandey, learned counsel for the petitioner/plaintiff contends that a suit for specific performance was filed against respondents No.1 to 4 and permanent injunction was sought against respondent No.5-Municipal Council. The plaintiff filed an application under Order 39 Rule 1 & 2 CPC, seeking permanent injunction against respondent No.5. The said application was rejected by trial court on 05.02.2010.
3. The petitioner contends that the trial court dismissed the said application on the ground that the agreement to sell which was executed by husband of respondent No.1 and father of respondents No.2 to 4 is WP.1368/2011 2 not properly stamped and it is an unregistered document. Hence, it is not admissible in evidence. In addition, the trial court held that possession of petitioner over the suit plot is not legal. Hence, petitioner is not entitled to get injunction.
4. Shri Pandey urged that if document is unstamped or unsufficiently stamped, the proper procedure is to impound it and sent to Collector under Section 40 of Stamp Act. Reliance is placed on 2009 (4) MPHT 357 Bhismat Pandey Vs. Phoola & Ors. It is urged that this Court in Bhismat Pandey (supra) relied on the judgment of Supreme Court reported in (2002) 10 SCC 427 (Para 13 & 14) (Preeti Subba Rao Vs. Anumala S. Narendra). Shri Pandey further argued that respondents No.1 to 4 were exparte before the court below and main contesting party was respondent No.5. Thus, court below was not required to consider the agreement at the stage of considering injunction application. He submits that possession is admitted by respondent No.5. Hence, a strong prima facie case, balance of convenience etc. were in favour of plaintiff. Lastly, it is urged that courts below have committed an error of law in not granting injunction.
5. Prayer is opposed by Shri V.K. Bhardwaj, Senior Advocate assisted by Ms. Sudha Shrivastava, learned counsel for respondent No.5. The respondents contended that the specific case of respondent No.5 is that the petitioner has encroached upon a public land. He has no legal right or title over the suit land. Reliance is placed on (1994) 5 SCC 547 (Premji Ratansey Shah vs. Union of India). Shri Bhardwaj further contended that the alleged agreement to sell was executed on 01.02.2004 with Bhishma Pratap Singh. It is noteworthy that whole amount of consideration is paid and possession of disputed land is shown to have been delivered, no reason has been assigned as to why sale deed has not WP.1368/2011 3 been executed. This shows that said agreement is a fake document.
6. Learned senior counsel for respondent No.5 further stated that in the agreement aforesaid, the source and flow of title is not mentioned. How Bhishma Pratap Singh became owner of the disputed property, is not shown. The conduct of parties show that their story is not trustworthy. By placing reliance on Page 36 & 37, it is urged that name of Amit Dixit/petitioner is mentioned. Name of Bhishma Pratap Singh is nowhere mentioned in the said document and, therefore, the said document does not inspire any confidence. It is totally unreliable. He cited 2015 (2) JLJ 101 (Rajesh Mehra Vs. Ram Vilas Singh) in this regard.
7. Shri Bhardwaj, learned senior counsel further contends that the agreement to sell dated 01.02.2004 is neither properly stamped nor registered. Thus, it cannot be used for any purpose. By taking this Court to Section 35 of Stamp Act, Section 49 of Registration Act and judgment of this Court in 2012 (3) MPLJ 555 (Khushi Ram Awasthy Vs. Saheb Singh), he argued that the said agreement cannot be relied on for any purpose. He also relied on Annexure P/8 (Page 42), to submit that the land in question is a public land which is encroached upon by the petitioner.
8. Lastly, it is submitted that this Court in W.P.No. 2224/2010 (PIL) Annexure P/9 directed to decide the suit within a year. He submits that as per Section 54 of Transfer of Property Act, the petitioner has not acquired any right or title in the property. He further relied on 2014 (2) MPJR 1 (SC) Nagarpalika Parishad Vs. Ramnath & Ors. to contend that in absence of issuance of notice under Section 319 of Municipalities Act, 1961, suit is not maintainable. Reliance is placed on 2004 (2) JLJ 185, to contend that injunction cannot be granted when suit WP.1368/2011 4 itself is not maintainable.
9. Learned counsel for the parties filed their written arguments/synopsis in which aforesaid points are reiterated.
10. I have heard learned counsel for the parties and perused the record.
11. It is seen that one main reason for rejecting the prayer for injunction is that the agreement is not stamped. The petitioner is trying to establish his right on the basis of said agreement. Even if, the relief of injunction is confined against respondent No.5, fact remains that even this right is arising out of alleged agreement to sell. Thus, it is required to be seen whether on the basis of an unstamped agreement, a prayer for injunction can be considered. Putting it differently whether the petitioner can rely on an unstamped document even for the purpose of seeking injunction. Since, this question goes to the root of the matter, I deem it proper to deal with this aspect as preliminary issue.
12. This point is no more res integra. AIR 2003 Karnataka 241 (K.B. Jayaram & another Vs. Navineethamma & Ors), Justice Tirath S. Thakur (as His Lordship then was), opined that no instrument chargeable with duty shall be admitted in evidence "for any purpose" by any person or even by consent of parties. In para 4 of said judgment, it is held that the court below should first insist upon payment of stamp duty and penalty on the agreement to sale before it. Thereafter, only prayer for injunction could have been considered. The order of court below was disapproved where it has issued injunction subject to payment of stamp duty and penalty. Thus, payment of stamp duty is condition precedent for considering the prayer for injunction also. This Court in 2009 (1) MPLJ 176 (Narbada Prasad Agrawal Vs. Tarun Bhawasar), opined that WP.1368/2011 5 unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose including collateral purpose. The Apex Court in (2009) 2 SCC 532 (Avinash Kumar Chauhan Vs. Vijay Krishna Mishra), opined as under:-
"25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes."
(Emphasis Supplied)
13. In the light of aforesaid, it is clear that the very basis for establishing right i.e. agreement to sell cannot be considered, unless it is duly stamped. The courts below have not committed any error in rejecting the injunction application because the document was not stamped. In view of this conclusion, it is not necessary to deal with other points raised by the parties. It will be open for the petitioner to get the document stamped and take action as per relevant provisions of the Stamp Act, so that document is properly stamped. It will be open to the Court below to consider such stamped agreement in accordance with law. At this stage, there is no reason to interfere with the impugned order.
14. Petition fails and is hereby dismissed. No cost.
(Sujoy Paul)
(alok) Judge