GOPAL Vs. BADRI

JUDGEMENT

(1.) This writ petition has been filed by the petitioners- plaintiffs (hereinafter referred to as 'the plaintiffs') against the order dated 18.1.2019 whereby the application filed by the respondents-defendants (hereinafter referred to as 'the defendants') under Section 151 CPC has been partly allowed with the direction that Ex.-1 shall not be read in evidence and the application filed by the plaintiffs under Section 35 of Rajasthan Stamp Act has been dismissed.

(2.) Facts of the case are that the plaintiffs filed a suit for declaration, cancellation of the registered sale deed dated 30.10.2008 and permanent injunction. During the pendency of the suit, the defendants filed an application under Section 151 CPC mentioning that Ex.-1 is neither endorsed on a stamp paper nor is a registered document, therefore, it ought not to have been marked as an Exhibit. The plaintiffs also filed an application under Section 35 of the Rajasthan Stamp Act for impounding the document and sending the same to the Collector (Stamps) for assessment of court fee and penalty payable thereon. The Trial Court, vide its order dated 18.1.2019, partly allowed the application filed by the defendants. While the Trial Court directed that Ex. -1 shall not be read in evidence, it dismissed the application filed under Section 35 of Rajasthan Stamp Act for impounding the said document.

(3.) Learned Counsel for the plaintiffs submits that by virtue of the proviso to Section 49 of the Registration Act, 1908, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence for collateral purpose and the same may not required to be registered. He further submits that a per Section 39 of the Rajasthan Stamps Act, 1998, an instrument which has not been executed on a proper stamp value can be admitted in evidence on payment of duty with penalty thereon. In this regard, the application was filed by the plaintiffs under the Rajasthan Stamp Act, but the learned Trial Court has utterly failed to consider this aspect of the matter and while partly allowing the defendants' application under Section 151 CPC, dismissed the plaintiffs' application under Section 35 of Rajasthan Stamp Act. Hence, the impugned order is liable to be quashed and set-aside.