Rapeti Veerraju and Another vs Peela Baburao and Others

Motilal B. Naik, J.—These two C.R.Ps. arise out of two orders passed in LA. No. 25 of 1995 in CS. No. 129 of 1994 on the file of the District Munsif, Prathipadu. C.R.P. No. 1270 of 1995 is filed against the order dated 15-2-1995 in I.A. No. 25 of 1995 and C.R.P.No. 1271 of 1995 is filed against the order dated 8-3-1995 in LA. No. 25 of 1995. As these two CRPs are preferred against LA. No. 25 of 1995, they are being disposed of by a common order.

Petitioners are the plaintiff. They instituted the suit O.S. No. 129 of 1994 for permanent injunction. Along with the suit, petitioners also obtained an ad-interim injunction restraining the defendants from interfering with their so-called possession. The defendants who are the respondents in these CRPs, appeared before the lower Court and sought vacating the interim order. At that stage, probably, the petitioners/plaintiffs realised that the suit for permanent injunction filed by them has to be necessarily converted into one for specific performance based on an agreement of sale dated 4-6-1988 executed by the first defendant in favour of the second plaintiff.

In order to convert the suit one for specific performance basing on the agreement of sale dated 4-6-1988, petitioners filed I.A. No. 25 of 1995 under Order 6 Rule 17 CPC seeking to amend the plaint for a decree of specific performance. Petitioners claimed in the application that pursuant to the sale agreement dated 4-6-1988 executed by the first defendant in favour of the second plaintiff, they were put in possession of the suit schedule properties. This application was however, though opposed by the defendant-respondents, the lower Court ordered the application on 12-5-1995 subject to the payment of stamp duty and penalty on the document, agreement of sale dated 4-6-1988. I.A. No. 25/95 was ordered subject to the condition that the petitioners/ plaintiffs pay the stamp duty and penalty on the said document i.e., agreement of sale. Time for payment was also granted. On 8-3-1995 it was complained to the lower Court that the petitioners have not deposited the stamp duty and penalty as directed by the Court while ordering LA. No. 25 of 1995 on 15-2-1995. The Court found that the petitioners had failed to comply with the orders dated 15-2-1995 and therefore, dismissed the application LA. No. 25 of 1995 by an order dated 8-3-1995. The orders passed in I.A. No. 25/95 dated 15-2-1995 and 8-3-1995 are the subject matter of challenge in these two CRPs.

Sri P.S. Narayana, learned counsel appearing on behalf of the petitioners/plaintiffs submitted that when an application is filed under Order 6 Rule 17 CPC, the Court has to either order the application or dismiss the application, but imposing a condition to deposit stamp duty as well as penalty is beyond the jurisdiction of the Court. It is stated, there was no occasion for the petitioners/plaintiffs to make their submissions on the question of payment of stamp duty and penalty. If the lower Court desired payment of stamp duty and penalty, the Court ought to have given an opportunity to the petitioners to make their submissions in this behalf and on the basis of submissions, if an order is passed, that order would have been a proper order. In this background, it is contended by Sri P.S. Narayana, having no occasion to urge this point, the order passed by the lower Court on 15-2-1995 and the consequential order dated 8-3-1995 in I.A. No. 25 of 1995 is per se illegal and the said order has to be set aside.

Sri N. Ram Mohan Rao, counsel appearing on behalf of the respondents has justified the order passed by the lower Court and stated that the order of the lower Court is within its competence. While referring to a decision of a Division Bench of Kerala High Court in Asokan Vs. The Deputy Collector (RR), Collectorate, Ernakulam and Another, . Sri Ram Mohan Rao has stated that the lower Court is competent to direct a party to pay sufficient stamp duty and penalty, which, in the opinion of the Court, such payment of stamp duty and penalty is necessary in the set of circumstances.

On hearing both the counsel, what appears to me in this case is whether the lower Court is competent in directing the petitioners to pay the stamp duty and penalty when the Court was considering an application filed under Order 6 Rule 17 of CPC ?

It may be that when considering an application under Order 6 Rule 17 of CPC, the Court normally should not have imposed a condition seeking payment of stamp duty and penalty by the petitioners. But seeking payment of stamp duty and penalty by the Court while disposing of the application filed under Order 6 Rule 17 of CPC, cannot be said, the Court lacked jurisdiction. That all depends upon the facts of each case. It is not the case of the petitioners that they were deprived of the opportunity for seeking a document to be referred to the District Collector u/s 38(2) of the Stamp Act. When the petitioners had the opportunity to take the document to the District Collector u/s 38(2) of the Stamp Act, having failed to do so, I do not think that the petitioners are justified in assailing the orders passed by the lower Court. When once an application u/s 38(2) of the Stamp Act is filed before the Civil Court, the Court has no option than to refer the matter to the District Collector for deciding the quantum of stamp duty and penalty. In B.V.R. Reddy Vs. The Adoni Co-operative Central Stores Ltd. and Another, , this Court has taken a similar view in the similar set of circumstances.

In the facts and circumstances of the case, since the petitioners are agitating that they had no opportunity to urge on the question of seeking a reference to the Collector u/s 38(2) of the Stamp Act, the order of the lower Court dated 8-3-1995 dismissing I.A. No. 25 of 1995 is set aside, which is subject matter of CRP No. 1271/95, permitting me petitioners to file an application u/s 38(2) of the Stamp Act for sending the document to the District Collector for the purpose of determining the stamp duty and penalty. This exercise shall be completed within a period of one month from the date of receipt of the order. These two CRPs are disposed of in the above terms. No costs. This order shall not in any way prevent the Court from deciding the other interlocutory matters pending on its file according to law.