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TMI Blog2024 (7) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... 19th October, 2010 passed by the Court of Additional Senior Judge-III, Mangalore Trial Court, hereafter and allowed the petition Writ Petition No. 11653 of 2011 (GM-CPC) preferred by the respondent under Article 227 of the Constitution. 3. The facts, relevant for the disposal of the present appeal, are adverted to in brief hereunder: a. First Sale Agreement and Sale Deed: On 3rd October, 2003, a Sale Deed was executed regarding the suit property by one B. Ramesh Hegde in favour of his wife, who is the respondent here. This Sale Deed was executed on the strength of a General Power of Attorney GPA, hereafter dated 16th September, 2003, which was allegedly executed by one Praveen Shetty in favour of B. Ramesh Hegde in respect of the suit property, authorizing him with power to sell the suit property. b. Second Sale Agreement and Sale Deed: An agreement to sell the suit property was executed between the appellant and Praveen Shetty on 11th September, 2003. The appellant paid the consideration, and a Sale Deed was executed on 8th October, 2003 between the appellant and Praveen Shetty. c. Civil Suit by the appellant: The appellant instituted a civil suit O.S. No. 301 of 2003 &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence, the stamp duty could not subsequently be questioned on the ground that it has been insufficiently stamped, as per section 35 of the 1957 Act. 4. Vide order dated 19th October, 2010, the Trial Court allowed the I.A.s and directed the respondent to pay the deficit stamp duty, along with the penalty, as required for a power of attorney under article 41(eb) of the Schedule to the 1957 Act. 5. Dissatisfied with the aforesaid order of the Trial Court, the respondent approached the High Court whereupon the petition was allowed by the impugned order, inter alia, recording that: "2. It is evident from the material that the document has been marked and admitted in evidence and exhibited. It is the contention of the respondent under order 13 rule 4 there should be a specific statement to the effect that the document has been so admitted and endorsement shall be signed and initialed by the Judge. In the absence of the said requirement, marking of document does not mean admission of document in evidence. The argument of the counsel for the respondent is untenable. In the normal procedure when the document is produced, it is marked and exhibit number has assigned and beneath the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion has engaged our consideration. There is no doubt that the GPA is insufficiently stamped. What we need to consider on facts and in the circumstances is, which of the two conflicting views taken by the Trial Court and the High Court is right. 10. Despite the GPA having been admitted in evidence and marked as an exhibit without objection from the side of the appellant, we propose to hold for the reasons to follow that the Trial Court did have the authority to revisit and recall the process of admission and marking of the instrument, not in the sense of exercising a power of review under section 114 read with Order XLVII, CPC but in exercise of its inherent power saved by section 151 thereof, and that the other remedy made available by the 1957 Act was not required to be pursued by the appellant to fasten the respondent with the liability to pay the deficit duty and penalty. 11. We may refer to the statutory framework of the 1957 Act. Sections 33, 34, 35 and 58, to the extent relevant for a decision on this appeal, read as follows: "33. Examination and impounding of instruments.- (1) Every person having by law or consent of parties authority to receive evidence, and every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced. (3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Deputy Commissioner and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument. (4) The Deputy Commissioner may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under Section 41, or in Section 42, prosecute any person for any offence against the stamp law which the Deputy Commissioner considers him to have committed in respect of such instrument. Provided that, - (a) no such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is either not stamped or is insufficiently stamped ought to judicially determine it. Application of judicial mind is a sine qua non having regard to the express language of sections 33 and 34 and interpretation of pari materia provisions in the Indian Stamp Act, 1899 1899 Act, hereafter by this Court. However, once a decision on the objection is rendered - be it right or wrong - section 35 would kick in to bar any question being raised as to admissibility of the instrument on the ground that it is not duly stamped at any stage of the proceedings and the party aggrieved by alleged improper admission has to work out its remedy as provided by section 58 of the 1957 Act. 15. Profitable reference may be made to the decision of this Court in Javer Chand and others v. Pukhraj Surana (1962) 2 SCR 333. There, provisions of section 36 of the 1899 Act, which is pari materia section 35 of the 1957 Act, came up for consideration. A Bench of four Hon'ble Judges of this Court held that when a document's admissibility is questioned due to improper stamping, it must be decided immediately when presented as evidence. The relevant paragraph is extracted hereunder: "4. *** Where a question as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the court to decide the objection. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay deficit duty and penalty? 2. Whether the order permitting the plaintiff to mark the document requires to be reviewed? 8. The points are answered in affirmative for the following: Reasons 9. *** The clauses are very specific that the power of attorney has been given powers to sell the properties and the power of attorney has acted upon the GPA and has execute the sale deed in favour of the plaintiff as per Ex.P3. Under Article 41(e), when the power of attorney is given for consideration and authorizing the attorney to sell the immovable property, the duty payable is same duty as a conveyance for a market value equal to the amount of the consideration. As stated above, no consideration has been mentioned in the GPA., but the GPA has been given authorizing to sell the immovable property. The GPA has been issued to a third party, ... article 41(ab) is applicable. The learned counsel for plaintiff objected for considering these applications on the ground that document is already marked with out any objections and hence the question of reviewing the order considering the question of stamp duty at this stage does not arise. As seen from the order sheet, the plaintiff was ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its part to apply judicial mind coupled with the absence of the counsel for the appellant before it when the GPA was admitted in evidence and marked exhibit, a factor which weighed with the Trial Court, we have no hesitation to hold that for all purposes and intents the Trial Court passed the order dated 19th October, 2010 in exercise of its inherent power saved by section 151, CPC, to do justice as well as to prevent abuse of the process of court, to which inadvertently it became a party by not applying judicial mind as required in terms of sections 33 and 34 of the 1857 Act. We appreciate the approach of the Trial Court in its judicious exercise of inherent power. 20. Reference to section 58 of the 1957 Act by learned counsel for the respondent is without substance. The clear language of section 58 refers to a situation, where an order is passed admitting an instrument in evidence as duly stamped or as one not requiring a stamp, for its attraction. As evident from a bare reading of the order dated 19th October, 2010, the Trial Court did neither hold the GPA as duly stamped or as not requiring a stamp and, therefore, its applicability was not attracted. 21. We may not turn a b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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