J.K. Ranka, J. - (1.) INSTANT writ petition has been filed by the plaintiff -petitioner assailing the order Dt. 08/05/2013 passed by the trial court by which the application, filed by the defendants -respondents under Order 13 Rule 3 CPC seeking deletion of Exhibit -2 (Agreement Dt. 01/08/2007) submitted by the plaintiff -petitioner, has been partly allowed and order has been passed to impound the agreement Dt. 01/08/2007 with direction to the plaintiff -petitioner for making the document sufficiently stamped.
(2.) BRIEF facts of the case are that the plaintiff -petitioner filed a suit for specific performance of the contract Dt. 01/08/2007 before the ld. trial court against defendants -respondents No. 1 to 8 and after service of the summons, the defendants -respondents No. 1 to 8 submitted written statement of the plaint and on the basis of the pleadings of the parties, the ld. trial court framed issues and at the stage when the matter was posted for recording evidence of the plaintiff -petitioner, an application under Order 13 Rule 3 CPC was filed by the defendants -respondents No. 1 to 8 contending therein that the agreement Dt. 01/08/2007 is neither registered nor sufficiently stamped and thus the document being not admissible in evidence, deserves to be declared not admissible in evidence and be not exhibited in evidence. The plaintiff -petitioner filed reply to the said application contending therein that the defendants -respondents were served in April, 2009 and thereafter they put their appearance through lawyer and thereafter filed written statement in July, 2009 wherein the execution of the sale agreement Dt. 01/08/2007 was unequivocally admitted. It was further contended that the plaintiff -petitioner deposed statement in chief by way of affidavit in which the aforesaid agreement was exhibited as Exhibit -2 but the defendants -respondents, despite receipt of copy of the affidavit, did not raise any objection with relation to marking of exhibit on the said document rather sought adjournment to cross examine the witnesses and as such, the defendants -respondents waived their right to raise such an objection as has been raised in the application under Order 13 Rule 3 CPC. The trial court, after hearing counsel for both the parties, partly allowed the application of the defendants -respondents, as aforesaid. Hence the instant writ petition has been filed by the plaintiff -petitioner assailing the order passed by the trial court. It is contended by ld. counsel for the plaintiff -petitioner that the agreement Dt. 01/08/2007 was exhibited and after the said document having been exhibited, it was also admitted by the defendants -respondents and once a document has been exhibited so also admitted and there being no objection from the respondents, there was no occasion with the ld. trial court to direct to impound the said document and in further directing the plaintiff -petitioner to pay necessary stamp duty in accordance with law before the Sub -Registrar/Inspector General (Stamps), Jaipur. He further contended that the order is per se illegal and bad in law and there was no occasion for the ld. trial court to have passed such an illegal order. He elaborated his arguments that even otherwise, the matter with regard to the stamp duty could not have been taken up at this stage and could be left to be decided at the time of final disposal of the suit. He further contended that in so far as the respondent is concerned, at least he could not raise any objection and if at all there was insufficient stamp duty, then it was a matter between the petitioner and the state Government. He further contended that when the document was exhibited, there was no objection on behalf of the defendants -respondents and after seeking number of opportunities and time, suddenly the application under Order 13 Rule 3 CPC was filed wherein also the defendants -respondents merely wanted to delete Exhibit -2. which was filed with the affidavit. In support of his submission, he relied upon the judgments rendered in the case of Shyamlal Kumar Roy v. Sushil Kumar Agarwal: : AIR 2007 (SC) 637 and Kedar Singh Chauhan v. Bhagwan Singh: : AIR 2001 (Raj.) 125.
(3.) PER -contra, ld. counsel for the defendants -respondents contended that mere exhibiting of the document does not amount to admission and he contended that at no stage the issue of admission came and merely because a document has been exhibited in affidavit, it does not mean that it stands admitted and no objection could have been raised later on. He further contended that admittedly, the agreement under dispute was not duly stamped and that Sec. 39 of the Rajasthan Stamps Act and other provisions clearly demonstrate that document has to be properly stamped and unless a document has been sufficiently stamped, it cannot be considered in evidence. He further contended that the judgments relied upon by counsel for the plaintiff -petitioner are prior to the amendment made in CPC and Order 18 Rule 4 is clear in this regard. In support of his submission, he relied upon judgments rendered in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India (UOI): : AIR 2005 (SC) 3333; Jagdish Prasad & Ors. v. Parshu Ram & Anr.:, 2013(1) WLC (Raj.) 696; IVRCL Assets & Holdings Limited v. A.P. State Consumer Disputes Redressal Commission & anr.: : 2014(5) ALT 93.;