PREMBAI Vs. KHURSHID BANO

JUDGEMENT

(1.) THE petitioner/defendant (for short 'the petitioner'), in the instant writ application has projected a challenge to the order dated 6th August, 2010 passed by the learned Trial Court declining her application under Order 8 Rule 1(3) read with Section 151 of the Code of Civil Procedure (for short 'CPC').

(2.) BRIEFLY , the essential material facts necessary for appreciation of the controversy raised are: that on 22.2.2010, the petitioner tiled an application under Order 8 Rule 1(3) read with Section 151 CPC, for placing on record the sale deed dated 7.3.2005, executed by one Rafiq Bhai (predecessor -in -title of plaintiff -non -petitioner number 1 and 2), after closing of the evidence of the respondent/plaintiff (for short 'the respondent') on 28.8.2009. The matter was posted for evidence of the petitioner on 18.9.2009. The respondents/plaintiffs resisted the application stating that the document which is sought to be brought on record, is the sale deed, which was neither executed on sufficient stamp duty nor the same was registered and therefore, the same is inadmissible in evidence. The learned Trial Court dismissed the said application vide impugned order dated 6.8.2010.

(3.) THE learned counsel for the petitioner stressed, referring to the proviso to Section 49 of the Registration Act, 1908, that the legislature being conscious of the fact of the provisions contained under Section 33(2) and 35 of the Stamp Act, 1899 (hereinafter referred to as 'the Act of 1899', for short), which provides that no instrument chargeable with duty shall be admissible in evidence for any party; still has enacted Section 49 proviso with an overriding provision and therefore, even an unregistered document may be received in evidence for any collateral transaction and as such, provisions of Section 33 and 35 of the Stamp Act, 1899, did not lay any bar in receiving a document unstamped as evidence for collateral transaction. The learned counsel further submitted that even if, Section 35 of the Act of 1899 created a bar, still in view of Section 49 proviso of Registration Act, 1908, the statutory authorities are obliged by virtue of Section 39 of the Stamp Act of 1899, before whom such an instrument, chargeable with duty is produced and is not duly stamped; to impound the same and therefore, the learned Court below ought to have passed an order impounding the document and should have directed the petitioner to deposit the deficiency in stamp duty as per mandate of Section 38 of the Stamp Act of 1899 and ought to have admitted the document in admission for collateral purpose.