VIJAYALAKSHMI Vs. NAGARAJU

JUDGEMENT

(1.) The rejection of plaintiff I.A. No.6 under Order 13, Rule 4, CPC to consider the admissibility of the document dated 9/7/2002 marked as Ex.D1 by order Dt. 25/10/2010 in O.S. No.83/06 of the Senior Civil Judge & JMFC, Madhugiri, is called in question in this petition.

(2.) Petitioner instituted O.S. No.83/06 arraigning the respondent herein as the defendant to recover possession and for arrears of rent of Rs. 45,000/- as also enquiry into mesne profits from the date of suit till the date of delivery of possession. The defendant, on notice, entered appearance, resisted the suit by filing written statement. In the premise of pleadings of parties, the trial Court framed issues and the parties entered trial. After the closure of plaintiffs evidence, the defendant entered upon his evidence, whence on 28/1/2010 introduced 8 documents marked unopposed, as Exs.D1 to D8, as neither the petitioner nor her counsel were present before Court. The petitioner on 27/11/2010 filed I.A.No.6 under Order 13, Rule 4, CPC to re-consider the admissibility of the document Dt. 9/7/2002 marked as Ex.D1 on the premise that it was insufficiently stamped and ought to be impounded and direction be issued to the defendant to pay deficit stamp duty and penalty. According to the petitioner, the document being an unregistered mortgage deed allegedly executed by the vendors in title of the petitioner in favour of the respondent/defendant, covenanted that possession of the immovable property was delivered to the defendant as a mortgagee in possession, engrossed on stamp paper of value Rs. 100/-. It was the specific case of the petitioner that the document being an unregistered mortgage deed attracted the incidence of stamp duty under Art. 34(a) of the Karnataka Stamp Act, 1957, for short Act'.

(3.) That application was opposed by filing statement of objections of the respondent/defendant inter alia contending that Order 13, Rule 4 is inapplicable and the absence of the counsel at the time of marking of the documents is not a ground to consider the admissibility of the document. The Court below having framed a point for consideration, observed that Ex.D1, the mortgage deed, when marked in evidence unopposed on 28/1/2010, the question of admissibility of the documents on the premise that it was insufficiently stamped, at a later stage of the proceedings, is impermissible, following the decision of this Court reported in ILR 2007 Kar 2786 : (2007 (4) Kar AIR(R) 326 and accordingly by the order impugned, rejected the application.