K DINESH Vs. KUMARASWAMY

JUDGEMENT

(1.) THESE petitions are heard together as common questions of law arise for consideration.

(2.) THE brief facts in each case are stated hereunder: W.P. 1428/2009: THE petitioner is the plain- tiff in a pending civil suit in O.S. 464/2000, on the file of the Court of the Civil Judge, (Senior Division), Mysore. THE suit is for partition and separate possession of a house, which is the suit property. It is claimed to be a Hindu joint- family property of the parties. THE defendants, respondents 4 and 5 herein, claimed that the suit property has been agreed to be sold under an agreement of sale dated 21-11-1999, executed in their favour by respondent No.1 herein. It was also claimed that an advance amount had been received towards the total sale consideration of Rs.8.50 lakh and that the said respondents 4 and 5 had been put in possession of the suit property, under the agreement of sale. Incidentally, respondents 4 and 5 are said to have instituted a separate suit for specific performance of the above said agreement, in suit bearing No. O.S. 531/2000, before the same Court. THE said suits are being tried together. THE plaintiff in O .S. 531/2000, was examined as PW-1 and the agreement of sale, above referred was marked as Ex.P-1. THE petitioner himself has been examined as a witness and has been confronted with the document in respect of the signatures of respondent No.1 therein. THE petitioner had filed an application invoking, Sections 33 and 34 of the Karnataka Stamp Act, 1957, (Hereinafter referred to as the 'KS Act', for brevity), to contend that the said agreement of sale attracted stamp duty prescribed under Article 5(1)(e) of the Schedule to the KS Act. As the document was not sufficiently stamped, the petitioner requested the trial Court to impound the document and to collect duty and penalty from respondents 4 and 5. THE application was heard at length and rejected by the trial Court, on the ground that no objection had been raised at the time the document was produced and marked in evidence and therefore it was not possible to enquire into the question of adequacy of stamp duty paid on the said document, for purposes of addressing its admissibility in evidence. That order is sought to be questioned in the above petition. W.P. 19021/2009 : THE petitioners are the defendants in a pending civil suit. THE suit is for specific performance of an agreement of sale, brought by the respondent herein, in O.S. 999/2006 in the Court of the City Civil Judge, Bangalore. THE petitioners had contended that the agreement was a fabricated document. On the other hand, they contended that the suit property was the subject matter of a joint development agreement entered into by the petitioners with a property developer who had been put in possession of the property, two years prior to the agreement of sale. At the trial, during the course of the cross-examination of the plaintiff, respondent herein, was said to have been confronted with the said joint development agreement, the Counsel for the plaintiff had raised an objection as to the admissibility of the document on the ground the same was not duly stamped. THE same was marked as an exhibit, subject to the said objection. THEreafter, on an application by the respondent requesting the Court to impound the document and to collect duty and penalty on the same, from the petitioners, and the application having been allowed, the present petition is filed challenging the same. W.P. 10441/08 - THE Petitioner is the second defendant, in a pending civil suit, in O.S. 235/2002, before the Court of the Civil Judge (Senior Division), Holenarsipur. THE suit is for specific performance of an agreement of sale, of the suit property. At the trial the said agreement of sale was produced and marked as an exhibit by the plaintiff. At the relevant point of time, there was no objection to the document being marked. However, an application having been filed at a later point of time, calling upon the trial Court to impound the document, on the ground that the defendants had taken a specific plea in their written statement that the agreement of sale in question, was not duly stamped and was liable to be impounded and that notwithstanding the fact that there was no objection raised at the time the document was admitted and marked as an exhibit, the trial Court has rejected the application on the ground that the document once having been admitted, the question of admissibility could not be reopened. This is questioned herein. W.P. 18297/2009 : THE petitioner is the plaintiff before the trial Court in a pending suit for specific performance of an agreement of sale, in suit bearing No.O.S. 769/2006 , before the Court of the Civil Judge(Senior Division), Devanahalli. At the trial, the agreement of sale was produced, admitted and marked as an exhibit, without any objection. However, at a later point of time, when the case was set down for the cross-examination of other witnesses, the respondent had made an application invoking Sections 33, 34 and 58 of the KS Act, to contend that notwithstanding the fact that the agreement of sale in question having been admitted in evidence, the document was still liable to be impounded by the Court. THE said application having been allowed, after contest, the present petition is filed. W.P. 36252-36253/2009 : THE petitioner is the plaintiff in a suit for specific performance of an agreement of sale dated 10-4-2002, executed by the respondent. THE suit was contested. THE suit was set down for framing of issues-when the respondent filed an application under Section 34 of the KS Act, with a prayer that the document be impounded for want of duty and to impose penalty. THE petitioner in turn filed an application under Sections 33 and 37 of the said Act, seeking that the document in question be sent to the Deputy Commissioner, the competent authority, for determination of the duty payable. THE two applications were heard together and disposed of, whereby the trial Court has directed the petitioner to pay duty and penalty and has rejected the prayer of the petitioner. It is that order which is under challenge.

(3.) IN the second of the above petitions, the petitioner who seeks to contend that the document in question, namely, a joint development agreement, was sought to be produced for a collateral purpose and was not a document between the parties to the suit, though it related to the suit property, requires this Court to examine whether the law makes any distinction as to the purpose for which a document is produced, if that document was not duly stamped.