Sheetal Singh vs Fateh Singh on 1 April, 2009

S.B.CIVIL REVISION PETITION NO.314/2008- Sheetal Singh vs. Fateh Singh   Order dt: 1.4.2009


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              S.B.CIVIL REVISION PETITION NO.314/2008
                     (Sheetal Singh vs. Fateh Singh)

                           DATE OF ORDER : 1.4.2009

                HON'BLE DR.JUSTICE VINEET KOTHARI


Mr.Ramandeep Singh, for the petitioner.
Mr.Hemant Jain, for the respondent.


        Heard learned counsels.


        This revision petition is directed against the order dated

11/7/2008, whereby, the trial court has held that the agreement dated

24/5/2005 in the suit for specific performance, even though not being

registered, could be admitted in evidence and, therefore, objection

raised by the defendant was not justified and hence application filed

by the defendant was rejected.



        Learned counsel for the petitioner submits that even though the

agreement in question is not registered, since it was not adequately

stamped, same could not be admitted in evidence. He relied on the

decision of this Court in case of Smt.Jamna Bai vs. Tulsi Ram -

AIR 1997 Rajasthan 85.
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        On the other hand, learned counsel for the respondent relied

upon the decision of this Court in case of Chandra Pal Singh vs.

Smt.Nani Bai. & Anr. - 2008 (2) WLN 98 (Raj.) and of Supreme

Court in case of Shyamal Kumar Roy vs. Sushil Kumar Agarwal -

2007 AIR SCW 234 and submits that since agreement in question

after due examination of the plaintiff in this regard was admitted in

evidence and marked as Ex.1, the stage of raising such objection on

the part of defendant had passed and according to Section 36 of the

Stamp Act, 1899 the same could not be called in question.



        In Shyamal Kumar Roy's case the Hon'ble Supreme Court in

para no.22 held that what was necessary was that the document

should be marked in presence of the parties and they had an

opportunity to object to the marking of the document. The question of

judicial determination of the matter would arise provided an objection

is taken what document is tendered in evidence and before it is

marked as an exhibit in the case. Explaining the object of Indian

Stamp Act in para no.23 the Apex Court observed that it may be true

that the object of Indian Stamp Act is to collect revenue and the

amendments carried out by the State of West Bengal provides for
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more stringent steps in that behalf. It may also be true that by reason

of sub-section (4) of Section 33 of the West Bengal Act, a duty has

been cast upon the court to apply its mind when an instrument having

insufficient stamp duty is brought to its notice but only thereby

Section 36 of the Indian Stamp Act cannot be made inapplicable.

Section 36, is reproduced hereunder:-


                "Section 36 : Admission of instrument where
         not to be questioned- Where an instrument has been
         admitted in evidence, such admission shall not, except
         as provided in Sec.61, be called in question at any
         stage of the same suit or proceedings on the ground
         that the instrument has not been duty stamped."


        This Court in Chandra Pal Singh's case (supra) also dealing

with the proviso to Section 49 of the Indian Registration Act had held

that in a suit for specific performance by virtue of proviso to Section

49 the agreement even though not registered can be admissible in

evidence. Proviso to Section 49 is in two parts, while dealing with the

suit for specific performance said proviso clearly provides that

unregistered documents affecting the immovable property and

required by Registration Act or Transfer of Property Act to be

registered may be received as evidence of a contract in a suit for
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specific performance under Chapter II of the Specific Relief Act or

as evidence of any collateral transaction not required to be effected by

registered instrument.



        Admittedly, the present is a case relating to suit for specific

performance and, therefore, question of inadequate stamp duty or

unregisteration does not affect the admissibility of evidence in the

form of said agreement, particularly when the same has already been

marked as Ex.1 after due cross-examination of the plaintiff in this

regard by the learned trial court. The judgment relied upon by the

learned counsel for the petitioner relates to suit for injunction and not

a suit for specific performance and secondly same being at variance

with the judgment of this Court in subsequent matter in Chandra Pal

Singh's case and of Apex Court in Shyamal Kumar Roy's case (supra)

cannot be relied upon.



        In view of the above, no force is found in the revision petition

filed by the petitioner. The same is accordingly dismissed.



                                                       (DR.VINEET KOTHARI), J.

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item no.61
baweja/-