A.N. Puttamallaiah vs Kempamma

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 19.04.2012 passed in O.S. No. 87/2005.

The petitioner herein is the plaintiff in the said suit. The defendant herein had been placed ex parte at the first instance. At this stage, the plaintiff had produced a document and marked the same in evidence. On the ex parte order being set aside, the defendant has been provided an opportunity to contest the suit. The defendant at that stage filed an application under order VII Rule 11 of CPC seeking rejection of the plaint on the ground that the suit is filed based on a document which is insufficiently stamped and application under Section 151 of CPC was also filed. In that regard, the agreement dated 25.05.1987 was contended to be insufficiently stamped.

The Court below by the order impugned herein though arrived at the conclusion that the rejection of the plaint on that basis cannot be made and the application under Order VII Rule 11 of CPC cannot be allowed to dismiss the suit has however arrived at the conclusion that the document on the face of it is insufficiently stamped and in that context has allowed the application filed under Section 151 of CPC. At the outset, it is to be noticed that in the application filed under Section 151 CPC, the defendant had contended that the plaintiff be directed to pay the penalty in respect of the agreement dated 25.05.1987.

Learned counsel for the petitioner has relied on the judgment of this Court in the case of K. Amarnath Vs. Smt. Puttamma, to contend that once the document has been marked, the same cannot be reopened. Learned counsel for the respondent has on the other hand relied on the judgment of a Division Bench of this Court in the case of Miss. Sandra Lesley Anna Bartels Vs. Miss. P. Gunavathy, to contend that this Court has held that the consideration under Section 33 and 34 of the Karnataka Stamp Act are two different aspects of the matter and the Court has a duty cast upon it to impound the insufficiently stamped document and require the payment of deficit stamp duty.

On the legal aspect of the matter, there cannot be any dispute whatsoever that an insufficiently stamped document is to be impounded and the duty and penalty if payable be collected. In the instant case, as noticed, at the first instance, the defendant had been placed ex parte. Therefore, in such circumstance, even though the document had been marked, subsequently on the defendant coming on record and the document being relied on, certainly it would be open to the defendant to object to the document and to contend that it is insufficiently stamped and the same cannot be marked in evidence which will have to be considered by the Court.

Having stated so, it is clear that the Court below after taking note of the objection or on its own may look into the aspect as to whether the document is sufficiently stamped and thereafter come to its conclusion. However, in the instant facts, what is necessary to be noticed from the impugned order is that such exercise has not been undertaken by the Court below except for stating in one sentence that the document on the face of it is insufficiently stamped. No conclusion has been reached with regard to the nature of the document and the requisite stamp duty that was payable as on such date, taking note of the contents of the document in the circumstances where the defendant contended that possession was also granted under the said document. These are aspects which require consideration on the factual and legal aspects and thereafter a conclusion would have to be reached by the Court below.

To enable the same, the order impugned dated 19.04.2012 is set aside. The issue relating to the appropriate stamp duty payable on the agreement of sale dated 25.05.1987 keeping in view the nature of the document and the stamp duty payable in law as on that date shall be redetermined by the Court below and fresh orders be passed in that regard.

In terms of the above, the petition stands disposed of.