MUNSHIRAM SALUJA Vs. JELBAI AND OTHERS

JUDGEMENT

(1.) This revision has come up for hearing because of the order dated 23-, 8-1994 of reference made by Shri U.L. Bhat, Chief Justice (as he then was), because of challenge made during the course of hearing to the correctness of the decision in case Madan Mohan Vs. Gourishankar, AIR 1988 Madh Pra 152.

(2.) The facts giving rise to this revision in brief are thus. The petitioner/plaintiff instituted a suit in the Court of Second Addl. Judge to the Court of District Judge, Raigarh for specific performance of the contract executed on 5-1-1987 by the respondent No. 1/the defendant No. 1 in the suit. An alternative relief was also claimed that in case the contract cannot be specifically enforced the executant be directed to refund the entire consideration of Rs. 54,000.00 paid by the petitioner to respondent No. 1. Relief for permanent injunction was also prayed as the plaintiff alleged that on the date of the execution of the document, he was put in possession of the land on receipt of consideration of Rs. 54,000.00. The defendant No. 2 was impleaded as party to the suit as during the pendency of the suit, defendant No. 1/respondent No. 1 executed a sale deed in favour of defendant No. 2. The defendants contested the suit. The defendant No. 1 in his written statement denied the execution of the document, the receipt of the consideration and of handing over of the possession to the plaintiff of the suit land in pursuance of the alleged contract. It was contended that the document is fabricated and forged one, the value of the land is about Rs. 2 lacs, hence no question arises for executing the document for a consideration of Rs. 54,000.00. The plaintiff under the garb of the forged and fabricated document wants to garb the land. The trial Court framed the issues, Issue No. 8A and 8B related to the admissibility of the document as the document was neither properly stamped nor registered. The said issues were decided as preliminary issues. The trial Court after perusing the document relying on the decision rendered by T. N. Singh, J. in Madan Mohan Vs. Gourishankar, AIR 1988 Madh Pra 152 (supra) held that the document being not a contract for sale but a complete sale; hence is inadmissible in evidence for want of its registration in view of Sec. 49 of the Registration Act (for short 'the Act'). While deciding the issue No. 8(b) ordered that when the document has not been held to be contract for sale, the question of its impounding for insufficient stamp and for payment of penalty does not arise. However, the trial Court ordered that the document can be used for collateral purpose in evidence. The respondent No. 1 aggrieved of the part of the order filed a review petition and contended that as the document is not duly stamped it cannot be looked into even for collateral purpose till the proper stamp duty and penalty is not paid. Accepting the contention, the trial Court directed payment of stamp duty on Rs. 54,000.00 = 4050.00 + 40500 for penalty total Rs. 44550.00. Aggrieved of this order, the petitioner has filed this revision petition.

(3.) For the purposes of this revision it would be appropriate to refer to the document which reads thus -