IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.10.2008 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN C.R.P.PD.No.2417 and 2418 of 2007 and M.P.No.1 of 2008 P.Narayanan ... Petitioner in both C.R.Ps. Vs Kasi ... Respondent in both C.R.Ps. Both the Civil Revision Petitions are filed under Article 227 of Constitution of India, against the Orders dated 13.06.2007 passed in I.A.Nos.1080 of 2006 and I.A.No.119 of 2007 in O.S.No.86 of 2003 on the file of the Principal District Munsif, Panruti. For Petitioner in : M/s.K.Moorthy & both C.R.Ps. S.R.Sundar For Respondent in both C.R.Ps. : No appearance ***** O R D E R
The above Civil Revision Petitions are filed against the Order dated 13.06.2007 passed in I.A.No.1080 of 2006 and I.A.No.119 of 2007 in O.S.No.86 of 2003 on the file of the Principal District Munsif, Panruti.
2. The defendants in O.S.No.86 of 2003 is the revision petitioner in both the petitions.
3. The respondent herein/plaintiff filed O.S.No.86 of 2003 for a declaration to declare the plaintiff’s title over the suit property and also for a consequential injunction restraining the defendant from disturbing the plaintiff’s peaceful possession and enjoyment of the suit property.
4. During trial, the revision petitioner/defendant filed two applications i.e. I.A.No.1080 of 2006 to condone the delay to receive the documents and I.A.No.119 of 2007 to send for the documents sought to be received in I.A.No.1080 of 2006 to the District Stamp Officer, Cuddalore to determine the stamp duty and penalty. I.A.No.1080 of 2006 was not opposed by the respondent/plaintiff and no counter affidavit was filed by him. In so far as I.A.No.119 of 2007 is concerned, the respondent/plaintiff has not only filed common counter, but, made an expression that the petition could be allowed on payment of cost. But the trial court by order dated 13.6.2007 dismissed both the applications and aggrieved by the same, the above revision petitions have been filed by the defendant in the suit.
5. Heard the learned counsel appearing for the revision petitioner and no one appeared on behalf of the respondent even though service was completed on 12.9.2007 in C.R.P. (PD) No.2417 of 2007 and 15.10.2007 in C.R.P.PD.No.2418 of 2007. I have also gone through the documents and judgments filed in support of his submission.
6. It is not in dispute that the revision petitioner/defendant wanted to file an unregistered release deed dated 23.7.1993 and as there was a delay in filing the same and as the suit itself was in a part-heard stage, he filed I.A.No.1080 of 2006 to condone the delay and to receive the document dated 23.7.1993. He further filed another application in I.A.No.119 of 2007 to send for the document to the Officer concerned to determine its stamp duty and penalty. The trial court found fault with the revision petitioner for filing I.A.No.1080 of 2006 at a delayed stage and refused to receive the document. Consequently, the trial court dismissed I.A.No.119 of 2007 also.
7. It is settled law that even an unregistered document could be admitted for collateral purposes, if the party is willing to pay the deficit stamp duty and penalty (refer 2002(3) L.W. 543 (Chellammal Vs Meenakshi).
8. Even an unregistered sale deed which is not admissible in evidence can be looked into for collateral purposes such as to see the nature of possession of party over suit property (refer A.I.R.2003 SC 1905 (Bondar Singh and others Vs Nihal singh and others).
9. In A.I.R.2001 SC 1321 (Chilakuri Gangulappa Vs Revenue Divisional Officer, Madanapalle and another), the Hon’ble Supreme Court laid down the law, when the courts are faced with applications to receive unregistered and insufficiently stamped documents. According to the Hon’ble Supreme Court, the Civil Court has power to admit the unregistered document in evidence, if the party producing the same would pay the stamp duty together with penalty amounting to ten times the deficiency of the stamp duty. The procedure to be followed in this regard has been narrated by the Hon’ble Supreme Court in the above decision which is as follows:
“12. It is clear from the first sub-section extracted above that the court has the power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the court chooses to admit the document on compliance with such condition the court need forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory steps. But if the party refuses to pay the amount aforesaid the Court has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof.
13. In the present case, an argument is raised that the instrument is not actually an agreement of sale as envisaged in the Schedule to the Stamp Act (subject to amendment made by the State of Andhra Pradesh) but it is only a deed of compromise entered into by two disputing persons. We refrain from expressing any opinion on the said plea as it is open to the parties to raise their contentions regarding the nature of the document before the trial court. In the present case the trial court should have asked the appellant, if it finds that the instrument is insufficiently stamped, as to whether he would remit the deficient portion of the stamp duty together with a penalty amounting to ten times the deficiency. If the appellant agrees to remit the said amount the court has to proceed with the trial after admitting the document in evidence. In the meanwhile, the court has to forward a copy of the document to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty as provided in Section 40(1)(b) of the Act. Only if the appellant is unwilling to remit the amount the court is to forward the original of the document itself to the Collector for the purpose of adjudicating on the question of deficiency of the stamp duty. The penalty of ten times indicated therein is the upper limit and the Collector shall take into account all factors concerned in deciding as to what should be the proper amount of penalty to be imposed.
14. Inasmuch as none of the above proceedings had been adopted by any of the authorities including the High Court we set aside the impugned orders. We direct the Munsif to consider first whether the document is insufficiently stamped and if he finds that question in the affirmative he has to adopt the next step indicated above”.
10. Therefore, it is very clear that even an unregistered document can be looked into by the trial court for collateral purpose if the party is willing to pay the deficit stamp duty and the penalty.
11. In the present case, the trial court found fault with the revision petitioner for not filing the document in time and therefore dismissed the first application filed in I.A.No.1080 of 2006. Consequently, he dismissed the next application in I.A.No.119 of 2007.
12. I am of the considered view that the trial court has committed an illegality by adopting a hyper technical approach in refusing to receive the document sought to be filed in I.A.No.1080 of 2006. In a matter of this nature, court should adopt a liberal approach and try to do complete justice by giving full opportunity to the contesting parties. In the present case, the respondent/plaintiff himself did not oppose both the applications and infact endorsement has been made in I.A.No.119 of 2007 stating that the application could be allowed on payment of cost. In such circumstances, the trial court ought to have allowed the applications on terms. By not doing so, an opportunity has been refused to the revision petitioner and therefore, I am willing to interfere with the order passed by the trial court.
13. In so far as I.A.No.1080 of 2006 is concerned, I have no hesitation in allowing the same on payment of cost of Rs.500/- and the trial court is directed to receive the document sought to be filed in I.A.No.1080 of 2006 after the cost has been paid as indicated in this order.
14. Thereafter, the trial court shall take up I.A.No.119 of 2007 and ask the revision petitioner whether the revision petitioner would pay the stamp duty together with a penalty amounting to ten times the deficit stamp duty. If the revision petitioner agrees to pay, then opportunity should be given to the revision petitioner to pay the amount. After the amount has been paid, the document could be admitted by the trial court and at the same time, a copy of the
S.RAJESWARAN,J
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document should be sent to the appropriate authority together with the amount collected from the party for taking adjudicatory step as narrated by the Hon’ble Supreme Court in para 12 fo the judgment reported in A.I.R.2001 SC 1321 (cited supra).
15. In the result, the C.R.P. (PD) No.2417 of 2007 filed against the order in I.A.No.1080 of 2006 is allowed on condition that the revision petitioner pays a cost of Rs.500/- to the respondent herein within two weeks from today. C.R.P. (PD) No.2418 of 2007 is also allowed as indicated in this order. No cost. Consequently, M.P.No.1 of 2007 filed for stay is also closed.
16. It is made clear that if the cost of Rs.500/- is not paid within the time stipulated, this order gets recalled automatically and both the revision petitions would be dismissed without further reference to this court.
23.10.2008
Index: Yes/No
Internet:Yes/No
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To
The Principal District Munsif, Panruti.
C.R.P.PD.No.2417 and 2418 of 2007
and M.P.No.1 of 2007
S.RAJESWARAN,J
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26.08.2008