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Judgment
On the prayer made jointly by both learned counsels, this
first appeal is being heard and decided finally.
The plaintiff-appellant has preferred this appeal against the
judgment and decree dated 02.03.2016 whereby the learned trial
court has dismissed the suit filed by the plaintiff for specific
performance of the agreement to sell dated 14.08.2000 and also
for seeking permanent injunction order in his favour.
On perusal of the judgment impugned and record, it is found
that the suit has been rejected mainly on the ground that the said
agreement to sell dated 14.08.2000 was not sufficiently stamped
and thus, was not found admissible in evidence. All the issues
framed by learned trial court have been decided against the
plaintiff on this sole ground that the said agreement was not
admissible in evidence and hence, oral evidence adduced in regard
to the issues framed does not require any detailed consideration.
Learned counsel for the appellant has submitted his
argument while placing reliance on the judgment rendered by
Hon''ble Supreme Court in Chilakuri Gangulappa V/s Revenue
Divisional Officer, Madanpalle & Anr. Reported in (2001) 4 SCC ,
197, he submitted that in light of the judgment referred above,
the matter may kindly be remanded back to the trial court as the
appellant-plaintiff is ready and willing to make good deficiency of
the stamp duty as also to pay penalty leviable as per the
provisions of Rajasthan Stamp Act, 1998. Learned counsel for the
respondent has fairly conceded to the submission made by the
opposite side.
On perusal of the judgment impugned, it is found that the
learned trial court has preferred to decide the issue No.5 at the
first instance which was to the following effect:-
"Whether the suit is liable to be dismissed as the agreement is unregistered and insufficiently stamped"
In view of the judgment S. Kaladevi V/s V.R.Somasundaram
& Ors . reported in 2010 (2) RLW SC 1796, the learned trial court
came to the conclusion that the agreement was not required to be
registered but found that it was not sufficiently stamped and
hence, was not admissible in evidence.
Hon''ble Supreme Court has laid down in Chilakuri
Gangulappa (supra) that in case, the document produced before
the civil court is not found sufficiently stamped then the procedure
prescribed in the applicable stamp laws should be adopted for
getting the said document impounded in making the deficiency of
stamp duty good.
In light of the judgment referred above, the provisions
contained in section 37, 39, 42 & 44 of the Rajasthan Stamp Act,
1998 were required to be followed by learned trial court and after
making deficiency of the stamp duty good, it should have
proceeded to decide the case on merit. In the present case, the
trial court should have asked the appellant, if it finds that the
instrument is insufficiently stamped, as to whether he would remit
the deficient portion of the stamp duty together with a penalty
amounting to ten times the deficiency. If the appellant agrees to
remit the said amount, the court has to proceed with the trial
after admitting the document in evidence. In the meanwhile, the
court has to forward a copy of the document to the Collector for
the purpose of adjudicating on the question of deficiency of the
stamp duty as provided in Section 44 (i) (ii) of the Act. Only if the
appellant is unwilling to remit the amount, the court is to forward
the original of the document itself to the Collector for the purpose
of adjudicating on the question of deficiency of the stamp duty.
In light of whatever stated above, the judgment and decree
impugned dated 02.03.2016 passed by learned Additional District
Judge, Raisingnagar District Sriganganagar is quashed and set
aside and the matter is remanded back to learned trial court to
follow the procedure as contained in the provisions of section 37
(1) and (2), clause (a) of the proviso to section 39, section 42 (1)
& (2) and section 44 of the Rajasthan Stamp act, 1998 and
thereafter, to decide the case on merits.
The record of the trial court concerned be sent back
immediately. The parties are directed to remain present there on
10.07.2017.