The High Court · 2025

Constitution of India being aggrieved by the order, dated 23.L2.2OL6 passed in I.A.No.733 of 20 15 in O.S.No.l81 of 2OO9 by the learned XIV Additional Chief Judge ( F.T.C), City Civil Court, Hyderabad.

2. Heard Srt A.Venkatesh, learned Senior Counsel appearing on behalf of the revision petitioner and Sri Vedula SrIniucs, learned Senior Counsel appearing for respondent No. 1. Perused tl:e record.

3. The brief facts of the case are that Respondent No.1 herein is the plaintiff, who filed the suit against the revision petitioner and Respondent No.2 for specific performance of an Agreement of Sale, dated 06.O7.1998 and for consequential relief of injunction. Page 2 ol26 \Alt..t CR? :\to.3?01 of 201 :'

4. While tlee matter was coming up for the evidence on behalf of respondent I,Io.1/plaintiff, the petitioner/defendant No.2 filed an application tmder Section 33 of the Indian Stamp Act, 1899 (for short, 'the Act, 189!l') praying the trial Court to impound the Agreement of Sale dated 06.07.1998 and to direct respondent No.1/plaintiff to pay the deficit st€rmp duty and penalty of Rs.56,25,OOOl- on the said document.

5. It is further stated that the said Agreement of Sale is engrossed on'Stamp Paper'worth Rs. 100/- and there is a specific clause in the Agreement that possession has to be delivered as contemplated under Section 47-A (ll of the Act, 1899.

6. [t is further contended that on 06.O7.1998, the chargeable stamp duty is at the r:rte of 12.5o/o on sale consideration which would come to Rs.5,62,500/- and 10 times of thereof comes to Rs.56,25,000/-. In view of the same, as the agreement of sale is insufficiently stamped, it is liable for imprtunding.

7. Learned (:ounsel for respondent No.1-plaintitf filed counter- affidavit denying the averments made in the petition and contended that the petition is not maintainable either on facts or in law. that the delivery of possession of the suit property, agreement o[ sale and ( Page 3 of26 N/v&J CRP Na320l of20l7 Execution of Agreement of Sale are all disputed. [t was further alleged that the suit in O.S.No.1810 of 2001 was decreed in collusion by playing fraud behind the back of the respondent No.l-plaintiff to defeat his right in the present suit. It is further stated that the pleadings in the suit clearly establish that the Agreement of Sale, dated 06.07.1998 is neither a Sale Deed nor can it be treated as a document so as to pay the stamp duty and penalty.

8. It is further stated that as per the Agreement of Sale dated

06.07.1998, both parties have to fulfill their respective obligations, such as payment of balance consideration by respondent No.l and performance of certain terms and conditions by defendant Nos. L and 2 for execution of the Sale Deed in favour of the plaintiff and as per provisions of Section 43-A (1) of the Act, 1899, the disputed Agreement of Sale, dated 06.07.1998 is not liable for payment of stamp duty and it cannot be construed as a Sale Deed, therefore, the petition is liable to be dismissed.

9. Having heard both the counsel on record, the learned trial Court dismissed the petition on the ground that respondent No.l-plaintiff contended that he is in possession of the suit Schedule property and the respondents also claim possession over the suit schedule property. The very aspect whether who is in possession of the property can only be decided only after full-fledged trial by the competent Court, as there Page 4 of26 ..\,Af,,"/ CRP.\o.3]01 oJ20lt is a dispute regarding possession of the said property. The learned trial Court otrsglys4 that there is no need to send the Agreement of Sale for impounding of stamp duty and penalty. Aggrieved by the sarne, the present Civil Revision Petition is filed.

10. Learned Senior Counsel sri A.venkoltesh, appearing for the petitioner/defe:ndant No.2 contended that there is a clause in the agreement of sale which discloses that petitioner are in peaceful possession or: the suit schedule propert5l which was delivered on

05.05.1998 after duly demarcating the boundaries in the presence of the oflicials of the Jubilee Housing Cooperative Society. He further submits that the said agreement of sale was engrossed on Stamp Paper worth Rs.1O0/- only, in view of the recital relating to delivery of possession and pleadings to that effect, the stamp duty is insufficient and that the stermp duty payable has to be as that of a sale deed at the rate of 12.5o/o on the sale consideration. It is further argued that the plaintiff is bound to pay the deficit stamp duty and 1o times penalty thereon, as agr(:ement is insufficiently stamped and the agreement is liable to be impcunded. 1 l. Learned Se:nior Counsel further contended that the learned trial Court without crtnsidering the said facts has gone into the a-spect of possession and dismissed the application on the ground both the parties are claiming possession over the suit propertJ( and declined to r ,..'n Page 5 of26 NNR,J CRP No.320l ot20l7 send the document for impounding. He further argued that the trial Court ought to have taken into consideration the said document which is sought to be marked as an exhibit on behalf of the plaintiff and the same can be marked only if stamp duty and penalty is paid thereon as per the provisions of ttre Act, 1899.

12. Learned Senior counsel has relied upon judgment of the Honble Supreme Court cited in Yogesh Kumqr Sikkc u. I and also judgment rendered by the erstwhile High Court of the Andhra Pradesh reported in Sri. Marnl SoJag vs M/S Sri Jo:no.hita Estate2, tl:re relevant paragraph No.24 is extracted here below

24. TfE counsel for tle petitioner also sought to contend that sine the suit in tle present case is for a perpetual injunction, possession of tle petitioner on the date of the suit is alone to be ansidered, and for the allateral purpose of prouing possession, tle said agreement of sale could be receiued in euidene. This contention, altlwugh attractiue, does nol nterit any consideration for the reoson tlut tltere is a total and absolute bar u/ s 35 of tle Stamp Act as to admbsibility of insufficiently stamped documents. This uas considered by this Court in Thippareddg Obulamma anl Others Vs. Balu Narasimhulu and Others, AIR 2003 AP 525 ). This Court held: 13. In Sanjeeiua Reddi Vs. Johanputra Reddi, AIR 1972 AP 373 while dealing uith th.e scope of Section-3S of the Indian Stamp Act, a learned. single Judge ol this Court held: ' AtR oNLTNE 2ot9 pAwoH 1475 I ueNu,,npl t 8o4t2o n NNR.J CkP No.320l of 2017 While atnsidering the sape of Sec,tion-3S of the Indian Stamp Act, ue cannot bing in the effect of non-registration of a doanment under Section-49 of tle Indian Registration Act. Section- 17 of the Indian Registration Act deals taith documents, the reg$tration of which is mmpulsory and Section-49 is conerne:d onlg with the effect of such non-registration of tle doanmer:.ts uhich require to be registered bg Section- 1Z or by ang prouision of the Trarafer of properig Ad. TIE effect of non_ registration is that such a doanment shall not affect any immouable property auered bg it or confer ang pouer to ad.opt and it cannot be reeiued as euidene of anA transaction affecting such property or anfering such power. But there is no prohibition under Section-49 to reeiue such a doanment which requires t egistration to be used for a allateral pufpose i.e., for an entirerig different and independ.ent matter. T?tere is a total and absolute bar as to tlrc ad.mission of an unstamped. instrument whateuer be the nature of the purpose or howeuer foreign or independent the purpose mag be for uhich it b sought to be usecl", unless there is compliane uith the reEtirements of tlte prouisos to Section-3S. In otler words, if an unstamped instrumeni' is admitted for a allateral purposes, it would. amount to receiuing such a doanment in euidence for a purpose w hich Section- 3 5 prohibits. 14. In T. E'haskar Rao Vs. T. Gabriel and Others, AIR 1981 Ap 175 , a lea,"ned single Judge of this Court obserued: It is now utell settled that tlgre b no prohibition under Section- 49 of the R'egistration Act, to reeiue an unregistered doanment in euidence for collateral Wrpose. But the doqtment so tendered should be a'llg stamped or stauld amplg taith the requirements of Section-3.5 <:f the Stamp Act, if not stamped, as a document cannot be receiued in euidenec euen for allateral purpose unless ) PageT of26 NNR.J CRP No.J20l of 2017 it is duly stamped or dutg and penalty are paid under Section- 35 of the Stamp Act. 15. In Ummadi SubramanAam t/s. Ekka Dhanamma and anoth.er, (1999) 5 ALD 26: (1999) 4 ALT 706: (1999) 2 APIJ 337 another learned single Judge of this Court while dealing with the sape of Prouiso to Section-49 of tlrc Registration Act, 19O8, obserued: From this it is seen that even if an unregistered docament is produced before the Court a discretfon is giuen to th.e Court to impound tle document and admit tlrc same in euidence. Prouiso to Section-a9 of the Registration Act says that an unregistered doanment affecting immouable property and required eitlrcr bg the Registration Act or the Transfer of Property Act to be registered may be reeiued as euidenre of a contract in a suit for spectfic performane under Chapter-Il of tle Specific Relief Act, 1877. As tfus being a slcdt for specific performance, as per the proubo to Section-49 of the Registration Act, euen if it is a sale deed, tle same can be admitted in euidence. But the question of admitting the same in euidene will aise only after the Court impounds the document as contemplated under Section-33 of the Indian Stamp Act, L899. 18. From a ambined reading of tlte judgments referred to aboue, in anjunction with prouiso to Section-a9 of the Indian Regbtratton Act, 1908, broadtg tle following would emerge: (1).An unstamped or insufficientlg stamped document is ina,dmbsible in euid.ence. (2). As per tlw prouiso to Section-49 of the tndian Registration Act, an unregi.stered document affecting immouable property and required to be registered can be receiued as euidence either in cases referred to therein or to proue an!/ collateral trartsaction. l'age 8 of 26 N/v&J CRPNo.t2ot of20l1 (3). If ar'. unstamped or insufftciently stamped doanment coupled with the infirmitg of being unregistered can be receiued a.s euidenan for a collateral purpose, prouided, tle first defect under tlrc Indizn Stamp Act, 1899, is arrected. In other utords, an unstamtrted or tnsufftcientlg stamped doanment afier dulg impounaed as prescibed under Sectbn-33 of tle Indian Stamp Act, 1899 can be relied in euidence for allateral purpose.'

13. Learned Senior Counsel further contended that the payment of the stamp duty which the trial Court postponed initially and during the pendency ,rf the revision before this Court, the learned trial Court carne to conolusion that the said objection can be considered subsequently. Admittedly, there is no stay extended by this Court. It reveals that th,:re was an objection as to marking of the document as to non-paymerrt o[ sramp duty and penalty which the learned trial Court for the t.ime being postponed the decision and the same was allowed to be marked in evidence as Ex.Ag.

14. Learned Sienior Counsel further relied upon an unreported judgment of the Coordinate Bench of this Court in C.R.p..llo. lZ69 of 2023 and argued that the reason cited by the learned trial court in dismissing the rrpplication is against the provisions of the Stamp Act and against the: principlcs laid down in a catena of decisions cited above and subrnitted that for the purpose of deciding whether the document is required to be stamped or not, recitals of the document r ( Page 9 of26 NNR,J CRP No.320l of20t7 has to be looked into and not the possession and prayed this Court to allow the revision petition.

15. Per contra, the learned senior counsel Sri Vedulq Srtniucs appearing for respondent No.1 submits that the petitioner being a subsequent purchaser i.e, third party to the suit, has no locus standi to file the petition. The Agreement of Sale is already marked and though initially there was a stay granted by this Court, subsequently it was not extended and stay is not subsisting as on today and the petitioner was allowed to proceed with trial and thereby got the said document marked in evidence, as per Sections 33, 35 and 61 of the Act, 1899.

16. The learned Senior Counsel and contended that once the Court applies its judicial mind as to the liability of the 'Stamp Duty' and marks the said document, tJre question of re-opening does not arise. In support of his contention, he relied upon the judgments rendered by the Honble Supreme Court in Shycmal Kumar u. Sushil Kumar Agarwals and also in Omprakash a. Laxminqragan and others+ wherein at paragraph Nos.1O & 11 , it was held as under: " 70- In uiew of the riuol srzbmfssions, the question which falls for our deterrnination is as to utheth.er the admissibility of a ' 2006 ( I I ) Suprerne Courr Cases 331 ' Z0t+ 1l ) Suprerne Court Cases 618 Page l0 of26 NNR,J CRP No.320l of20 I 7 document produced ba the party would. d.epend upon the recitals in the ,cocttment or the plea of the ad.uersary in tlrc suit and. whether the doanment in question is "coraueyan@" as d.efined under tlrc Act and is duly stamped. 11. As stated. earlier, tlrc plaintiffs filed. a suit for speciftc perform,znce of contract and" their case i,s founded on the agreemetnt to sell exeanted on 27-i2-2ooo. The agreement to sell acknouledges payment of the part of consid.eration moneg and. further giuing actual physicalpossessfon to the purchaser by the seller. T,\ough the defendants d.ispute that, but in our opinion, for determination of the question of ad.missibilitg of a doa.tment, it is the recital therein which shail be d.ecisiue. whether tle possessritn in fact was giuen or not in terms of the agreement to sell is a cluestion of fact which requires adjudicatton. Ehtt, at tlw time of c<tnsidering tte question of ad.missibitity of doatment, it is the re<:ital therein which shatt gouern t?w bsue. It d.oes not mean that the recital in the doatment shalt be anclusiue but for th.e purp<>se of admissibitity it is th.e terms and. anditions incorporated tlrcrein which shalt hold. the fietd.. Hauing said. that, we proceed to consider as ro whether the doatment in question is"conueyartce" within the meaning of section 2(1o) of the Act. L7. The learn'-.d counsel further relied on Rcm Rq1ttan (dead) by legal rep"esen.tatiaes, Appellants a. Bajrang La.l and others s wherein it was held thus: "wlten the doatment was tendered in euid.ence ba the plaintiff uhile in utitness box, objection hauing been raised" bg the defendants that the document was tnad-missibte in euid.ence as sAtR l9z8 sc ti93 t. Page ll of26 NNR,J CRP No.l2ol of20l7 it was not dulg stamped and for want of registration, it was obltgatory upon the learned trial Judge to applA his mind to tLrc objection rai.sed and to decide the objects in acardane u.tith laut. Tendencg sometimes is to postpone the decision to auoid interntption in the process of recording euidene and, tlrcrefore, a uery conuenient deuie is resorted to, of marking the document in euidene subject to objection. This, la ueuer would not mean tlat tle objection as to admissibilifu on tle ground. that the instrument is not duly stamped. is judicially decided; it is merelg postponed. In such a sttuation at a later stage before tle suit b finatly d.isposed. of it would none-the-less be obligatory upon the court to decide tle objection. If after applArng mind to the riual contentions tle tial aurt admits a doa)ment in euidence, Section 36 of the Stamp Act would mme into play and such admi.ssion cannot be called in question at ang stage of tle same suit or proceeding on tle ground tlwt tle instrument lws not been dulg stamped. Tle court, and of ne@ssity it would be tial court before which tle objection is talcen about admissibtlitg of document on the ground tlnt it is not duly stamped, has to judicially determine the matter as soon as tha doanment b tendered in euidence and before it is marked a.s an exhibit in the case and wttere a document ha,s been ina.d.uertentlg admitted without the court applying its mind as to the question of admissibility, th.e instntment auld. not be said. to lwue been admitted in euidence with a uieut to attracting Section 36 (see Jauer Chand u. Pukhraj Surana) IAIR 1961 SC 1655] . 'fte endorsement made bg tlrc learned trial Judge that " Objected, allowed subject to objection", clearlg tndicates that when the objection was raised it was not judicially determined and tke doatment was merely tentatiuelg marked and in such a situation Section 36 would not be attracted.." Page 12 of26 NNR,T CRPNat20t ol2017

18. L,earned Senior Counsel for respondent No. t has submitted that the Ex.A.9-Agfeement of Sale has already been marked as document in the suit. 1'hough, initially there was a stay granted by this Court but subsequently the same was not extended and plaintiff got the document ma:ked as Ex.A.g. He also further contends that in view of the marking of the said document, nothing survives in the Civil Revision Petiti,rn and it has become infructuous.

19. Having treard the contentions put forth by the learned Senior counsel for ttre petitioner and the learned Senior counsel for tl..e respondent, the point that emerges for consideration before this Court "i) When the doanment is alreadg marked and the euidene is oncludea'. cnn it be sent for impounding at th.e subseqtent stage. ii) Whether the trial Court ho,s rightly considered the application and. dismissed the same."

20. At this sturge, it is imperative to extract the relevant provisions of the Stamp Act t:o find whether the present agreement of sale needs to be impound€d rlr not. The relevant provisions of the Stamp Act a-re extracted here urnder: "33. Examtnation and impounding of instruments.- (1) Euery person ha utng bg laut or consent of parties autLtoritg to receiue euidence, and euery person in charge of a public offtce, except an officer of police, before whom ang /^ Page t3 o126 /v/V&J cRPNo.320l ol20l7 instrument, chargeable, in his opinion, uith dutg, is produced or comes in th.e perfonnance of hi.s functions shall, if it appears to him that such instrum.ent is not dulg stamped, impound the same.

35. Instruments not duly stamped inadmissible in evidence, etc.- No ittstrument chargeable uith duty shnll be admitted in euidene for any purpose by any person hauing bg lau.t or @nsent of parties authoritg to receiue eui'i.d.ence, or shall be acted upon, registered or authenticated bg ang such person or by any public officer, unless such instrument is duly stamped: Provided tlwt - (a) ang such instrum.ent not being an instrument chargeable uith a dutg of tuentA paise, or a mortgage of crop ( Article 36(a) of Schedule-IA) ctwrgeable under clause (aa) or (bb) of section 3 uith a duty of forty paise or a bill of exctwnge or promissory note, shall, subject to all just exceptions, be admitted in euidence on pagment of the dutg with which tte sarne is clnrgeable or, in tte case o.f an instrument insulficiently stamped, of the amount required to make up such dutg, togetler uith a penaltg of fi.fteen rupees, or, wlten ten tim.es tle amount of th.e proper dutg or deficient portion tlereof etceeds fifieen rupees, of a surn equal to ten times such dutg or portion;

61. Reuision of certain decisiorts of Courts regarding tte sufficiencg of stamps.- (1) Wlen ang Court in the exercise of its ciuil or reuenue jurisdiction or anA Criminal Court in ang proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, malces any order admitting any instrument in euidence as dulg stamped or as not requiring a stamp, or upon paAment of dutg and a penaltg under section 35, the Court to uthich appeals lie Page 14 of26 NNR,T CRP No.J20l ol20r7 from, or references are made bg, suchfirst-mentioned. Court mng, o.f its oun motion or on the application of the Collector, tqke such order into consideration. (2) If suc:h Court, afier such consideration, is of opinion that suchins;trument should not haue been ad.mitted in euidence llitllout the payment of dutg and penaltg under section 35, or u.titlwut the pagment of a higher dutg and penaltg than tLase pcid, it mag record a declaration to that effect, and determir,'.e th.e amount of dutg tuith which such instrument is charg,eable, and. mag require anA person in utLose possession or pou)er such instrument th.en is, to produce th.e same\ and maA impound the same uthen produced. (3) Wen ang declaration has been recorded under sub- section (tl), tle Court recording the same shall send a copy th.ereof tc, the Collector, and, uth.ere the instrument to uthich it relates: has been impounded or is otherwise in th.e possessic,n of such Court, shall also send lim such instrum.ent. (4) Tle Cc,llector mag thereupon, notu,tithstanding angthing contained in tle order admitting such instntment in euidence, or in ang certiftcate granted under section 42, or in section 43, prosecute anA personfor ang offence against th.e Stamtrt laut which tte Collector considers him to haue ammitted in respect of such instrument: Prouided tLnt - (a) no such prosecution shall be instituted where the amount (including dutg and penaltg) uthich, according to tLe determinanlion of such Court, was pagable in respect of the instrumenl under section 35, is paid to tLe Collector, unless he thinks th.at tle offence was committed with an intention { Page 15 of26 NNR,I CRP No.320l ol20l7 of euading paAnent of the proper dutg; (b) except for tle purposes of such prosecution, no declaration made under this section shall alfect the ualidity of ang order admitting ang insttument in euidence, or of ang certificate granted under section 42."

21. To know the relevant and actual facts of the case on hand, this Court has called for the entire record along with testimony/deposition of the witness. It is found that the said document was marked subject to the objection which is reflected in the evidence recording sheet, dated 2O.O7.2OtT andthe same is extracted here under: oPwl Present Oath administered for furtler chief examination bg ptaintiff. Ex.A9 is agreem.ent of sale dt. 6.7.1998 execated by Smt. E.Pauarui Reddg in fauour of mgself and Sri G.Rajender Reddg (marlced subiect to objection by counsel for defendant uith regard tn stamp dutg. "

22. From the said recording, it clearly reveals that the learned trial Court has postponed the decision as to the collection of stamp duty and penalty. It is pertinent to mention here that similar issue fell for consideration before the Hon'ble Supreme Court in Btpln Shantilal Panchql a. Sto:te of @uJarat and Another5, wherein it was hetd thus: 6 AiR 2001 Supreme Coun Cases I I 5E Page 16 of26 NNR,J CRP No.l20t oI20rz "It is ant arclnic practice that during the euidence collecting stage, wleneuer ang objection is raised regarding admissibilitg of any mateial in eui.d.ence th.e court d"oes not proceeal furtler uithout passing order on such objection. But the fall out of the aboue practice is this: Suppose the trial anrt, in a case, upholds a particalar objection and exclude.s th.e material from being admitted in euid.ence and. tlen proceeds utith the trial and disposes of the case finallg. tf tte appellate or reuisional court,. wlen the same question. is re-canuassed, could take a different uiew on the admissi,bilitg of that mateial in such cases tlte appellate aurt would be depiued of the benefit of that euid-ence, because tlnt utas not put on record bg the trial court. In such a sihtation tle higlter court mag haue to send. tle case back to t.le trial court for recording that euid.ence and. tlpn to dispoe;e of tlrc case afresLu Whg sLauld the trial prolong like tlnt unnecessarilg on account of practices created. by ourselue:;. Such practices, wlLen realised through the course o.f long period to be hindrances which imped.e steadg ond swift progress of tiat proceedings, must be recast or re-moulded to giue way for better substttutes which wculd help acceleration of tial proceedings. When sa recast, the practice which can be a better substitute: is this.' Wheneuer an objection is raised. during euidence taking stage regarding the admissibilitg of any material ctr item of oral euidence tle trial court can make a note of such objection and mark tle objected d.ocument tentatiuelg as an exhibit in the case (or record the objected" part of the oral euidence) subjecj to such objections to be decided ani tle last stage in thqfinal judgment. tf the court Page l7 of26 NN&,J CRP No.32U of20l7 finds at the final stage that th.e objection so raised is sustainable the judge or magistrate can keep such euidence excluded from constderation. In our uiew there is no illegalitg in adopttng such a course. (Howeuer, ue make it cleqr thnt if the objection relates to deficiencg of stamp dutg of a doanment the court hi:'s to decide the objection before proceeding furtter. For all otler objections the proedure suggested aboue can be follouted.) The aboue proedure, if folloued, uill haue two aduantages. .Fl-rst fs that tl@ time in the trial court, duing euidence taking stage, would not be wasted on account of raising such objections and the court can continue to exqmine tle u/itnesses. Tle witnesses need not wait for long hours, if rwt dags. Seand is thnt the supeior court, wtten the same objection is re-cq.nuassed qnd reconsidered in appeal or reuision against tle final judgment of the trial court, can detennine the arrectness o/ the uiew taken bg the trial aurt regarding that objectton, utitLrout botheing to remit th.e case to the trial court again for fresh disposal. We mag also point out tllat this measure utould not cause ang prejudie to the parttes to th.e litigation and uould not add to their misery or expenses. We, therefore, make the aboue as a procedure to be follouted bg the trial courts wheneuer an objection is raised regarding the admissibility of ang material or ang item of oral euidence.o

23. The Honble Supreme Court in the above judgment has laid certain procedure to be fotlowed whenever there is objection with regard to stamp duty. Even if it is marked as per the endorsement Page 18 of26 NNR,J CR?NuJ20l ol20l, made by the learned trial court, the said document will be subjected to the payme:rt of stamp Duty. The Honble supreme court also held that when a, objection to a document's admissibility (e.g., due to insufficient stamping or lack of registration) is raised at the time it is tendered in evidence, the trial court is obligated to apply their mind to the objection ,and decide it immediately. Section 36 of the Stamp Act reads as unde::: 36 'The bar created by Section 36 of tlg Indian Stamp Act, uhich preuents an admitted doanment's sramp status from being questioned later, onlg appli.es if tle court l:nr;Ls judiciallg determine,d tle objection and admitted the d.oanment. It d.oes not applg to a'oatments tentatiuelg marked ,'subject to objection'.,,.

24. In the pre:sent case, the said application was liled much prior to the commencerrent of trial and the same was rejected for the reasons stated above r,r'hich has become the subject matter of the present revision. Though admittedly there was a stay granted by this court but for various reasons the stay was not extended, but as contended by the learned llenior counsel for petitioner that the reasons for non extension of the: stay the learned trial court proceeded to mark the same and comp..ete the trial, when the issue being already sub-jud.be before this courr:. As such the procedure adopted by the learned judge is not proper upon mere marking of the document, the civil Revision Petition urill not trecome infructuous. Page 19 of26 NN&J CRP No.J2ol ol2ot7

25. In view of the marking of the document subject to objection and as per the law laid down by the Hon'ble Supreme Court in Bipin Shantilal Panchats ca.se (cited suprd), Section 61 does not apply to the present case.

26. Coming to the impounding of the document, learned Senior Counsel Srl Vedulq Srlaiucs has argued that the learned trial Court has applied its judicial mind and has rightly rejected the contentions of the petitioner herein and as the document has already been marked, the same cannot be reopened. No doubt, the applicability of Section 36 witl come into operation, but the learned trial Court left open impounding the document and subject to the outcome of civil revision petition, the said document is marked and that too subject to objection as to the 'Stamp Duty'.

27. From and out of the submissions made by both the learned Senior Counsel on either side and the catena of judgments rendered by Senior counsels and upon perusal of the provisions of the Stamp Act, the question arises in day-to-day proceedings of the Courts with regard to Stamp Duty collection, this Court feels that it necessar5r to address the sarne by taking the lau, laid down on the said subject and the relevant provisions of the Stamp Act. Page20 of26 NNR,J CRP No.320l ol20l7 One such qu.estion that arises is: "wheth,'-r the stamp dutg has to be collected at th.e ttme of the inc<;ption of th.e suit or fiting of *e suit/ registeing of th.e suit or at the time of marking i.e. when it rs sought to be admt'.tted in euidence, ?

28. On bare reading of sub section (1) of Section 33 of the tndian stamp Act, 1,399 and the judgment of the Division Bench of High Court of Karnataka in Ms.Sandra Leslrlg Anna. Bartels a. lkliss P.Gttnaaathgct z , wherein, relying on the judgment of La.kshmi Naraganq.cho,r u. Naragan and o,nother (reported in 1969 (2) MLJ 299 | dealt with the 'question whether the court can impound the document only when the same is tendered during the course of the evidence?' and uthether ciuil court/munsif utiu come within the description of 'a person hauing bg raut authoritg to receiue evidence', answered the said questions. The relevant paragraphs of are extracted hr:reunder for ready reference: "B.This oourt while considering th.e eo,se of Lakshmi naraaanachar hns considered the proufsfons e sections 33 to 37 of t4e then Mgsore stamp Act. In paragraph No.s of the judgentent, while considering sub-section (1) of section 33 of the Stamp Act, his l-ordship Naragana pai, J., as Lrc then was has ruled as h.ereunder: 7 Attt 2013 K.4,IINA1',\KA 52, Page?l of26 NNR,T CRP No.J2ol of20l7 "5. Under sub-section(1) of Section 33, - "Euery person hauing bg law or ansent of parties autlnity to receiue euidence, and euery person in clwrge of a public office, except an offtcer of poli@, before whom any instrument ctnrgeable, in his opinion, with dutg, is produced or @rtes in th.e performance of his functions shall, if it appears to him, tlwt such instrument is not duly stamped, impound the same". There is no doubt that a Ciuit Court or the Presiding offtcer of a Ciuil Court will certainly ansu)er the desciption of "a person lwuing by law autlarity to receiue euidence". The Munstff in this ca.se, th.erefore, uill be entitled to, or more accuratelg, bound to impound the document if bg tooking into it, h.e entertains an opinion that tt is liable to stamp dutg but tlwt it i.s either not st@mped at all or is insuffictentlg stamped". 9. In Dinesh case, tle lean-ned single Judge of this Court uthile consideing th.e prouisions of Sections 33 to 38 and 41 of the Karnatalca fi,amp Act and also other releuant prouisions of tle Registratbn Act came to the conclusion that, in uiew of Sedion 33 of tle Karnataka Stamp Act, a Court can impound tlrc document without waiting till such document i.s soughtto be produced in euidence.

10. The respondent counsel lu,s also relied upon another judgment of this Court reported in 2O1O (6) Kar.L.J. 166 /S.Suresh -us- L.Pothe Gowda and others) wherein the learned single Judge while dealing u.tith Sectton 34 came to tle conclusion, under uhat circumstances a documerut can be impounded wlen th.e sam-e is tendered in th.e euidence. Considering all tte tlvee judgments reLied upon bg the respectiue parties and considering tle prouisions of NNR,J C&?No.320t of20t7 Section.s 33 and 34, we are of the uiew that this Court in Lakshninaraganachar case and Dinesh co.se uhile considering the prouisions of Section 33 lws clearlg lwld. tlwt, a power is uested in th.e Court to impound the document if it is insulficientlg stamped th.e monwnt it is produced before tlLe Court. Under Sectian 34 of tte Act, u.tlen such a docament is to be receiued in euidence, tle Court has got powers to impound the doanment before admitting th.e document.

11. Th.ere are two different circumstances under the Stamp Act for hnpounding a document; (1) tru Court hns potter to impound tlte document, nlornent it appears to the Court that such inslnrment is not dulg stamped and (2) or to wait till such d.o<:ument is tendered. in tle euiderrce. A combined. reading of Sections 33 and 34 clearlg reueal that a discretiort is granted to th.e Court eith.er to impound the documenl under Section 33 before the sam.e is tendered in euidence and euen if a document is not impounded under Section 33, the Court is bound to impound thc document when he same fs tendered in the eui.dence under Section 34. ln other words, the Court cannot sag tlut it tuitl uait till the docurnent is tendered in tle euidence, It is only an optton giuen to Court to exercise tlrc pouer under Section 33 & 34 but the difference behpeen Sections 33 and 34 is that, Section 34 can be enforced by a Court when a document has to be receiued in tle euid.ence but Section 33 can be inuoked not only bg tle Court, but, by euery person in-charge of a public offtce. A person in-cltarge of a public ( Page23 of26 NNR,J CRP No.J2ol oI20l7 office has no power to exercise the power uested under Section 34 of tte Act.

12. Court cannot say that it would impound the document only when the docament b tendered in eutderrce for marking. Tlere mag be irtstances uh.ere dutg and penalty pagable mag be uery high and tle partg maA not claose to rely upon such insulficientlg stamped document in order to auoid stamp dutg and penaltg. In such circumstances, it would result in loss of reuenue to ttw exch.equer. Tte pouter of impounding a document is to collect stamp du\1 and penalty u.theneuer there is an escape of duty. T'herefore, wh.en it is broughl to the notice of tle Court that a document is insufficientlg stamped, the Court exercising its power under Section 33 of tle Act h.as to pa,ss an order at the first instance for impounding the document. Ttaugh there is a discretion uested in the Court to exerctse powers under Sections 33 and 34 oJtlw Act, no Court can lold that it would woit till the docttment is tendered in euidence. In such circumstan@s, tlrcre m.ag be clLances of loss of re uenue to th.e exchequer.

13. In the circumstances, tt)e arlsuer the reference "holding that under Section 33 of tle Stamp Act, the moment an tnsufficiently stamped instrument com.es to the notice of the Court, the same hil,s to be impounded in accordance with Section 33, u.tlether the same uould be relied upon bg the partg under Section 34 or not.

14. We further claifg that, on careful reading of the judgment tn Lakshmi naraganachar's co,se also this Court Page2{ of26 NNR,J CRP No.320l of20l? has held that the Court has power to impound the document under Section 33. In this background, u)e are of the uiew that, there is no conflict of judgments in interpreting Section 33 but the question is utlwn Sections 33 and 34 ha.s to be exercised bg the Court uhich lnue been answered in the preceding paragraphs."

29. ln the case on hand, the learned trial Court while rejecting the application ha,s held that: "The res.oondent No.1/plaintiff in his plaint ontend.ed tlwt he is in lrossession of the suit scledule propertg, uth.ere as tte petit'.ioner/ defendant No.2 contended tlwt he is in possessi,?n of property who are in possession of the plaint schedule propertA i.e., respondent No.1 or petitioner uill be decided ofter full fledged trial. Taking into mnsideration of the abou,z facts and circumstances, I find tlut th.ere is no need to send the agreement of sale for impoundinS of Stamp Duty and penalty. Acardinglg, tle point is answerecl.. In th.e result, th.e petitton is dismissed. JVo costs.'

30. As per Clause No.1 of the said Agreement of sale, defendant No.1 ought to have delivered the vacant peaceful possession of the suit schedule property to the plaintiff. tn addition to the above, it is atso specific pleading of the plaintiff in paragraph No.4 at page 3 of the plaint which is as under: "As the de.fendant No. 1 and her famtlg members haue good credttabilittJ and belongs to tLe respectable famitg, the 11 Page 25 of26 NNR,T C&P No.320l ol20l7 plaintiff tntsting her words and lwnce defendant No.I and her lansband. E.Pradeep Red"dg haue deliuered the peacefut physical possession of the suit plot on 05.05.1998 duly demorcating the boundaries in th.e'presence and with the hetp of offtciat of Jubitee Housing Co-operatiue Society.D .Hilts

31. Considering the above decisions of the Honble Supreme Court and Division Bench of the High Court Of Karnataka, it can be culled out whenever the document is produced before the Court either at the time of registration of the suit or pending suit, once it is found that the said document is liable for payment of stamp duty or a deficit stamp duty has to be'paid, in such case a duty is cast upon the Courts to exercise the powers under Section 33 of the Indian Stamp Act, 1899.

32. [t is also to be noted that where a situation arises when the party is avoiding the payment of tl'e said starnp duty and penalty by contending that he may rely on it or not, but if it would result in loss \ \ of revenue to the excheqirer, in such case, the trial Court, either at the time of filing of the suit or pending proceedings of the matter, should exercise its power under Section 33 of the Indian Stamp Act, lB99 by sending the said document for impounding.

33. Hence for the said rea.sons, the Civit Revision Petition deserves to be and is accordingly allowed and the order passed b.v tt-re learrred XIV Page 26 of26 NNR.] CRPNo.J20t ol20t7 Additional C:hief Judgc (FTC) City Civil Court, Hyderabad, in I.A.No.733 of 20l5 in O.S. No. lgl of 2OO9 is set aside. Consequenfly, I'A' No' 733 'cf 2ors is allowed, directing the learned trial court to either collect the stamp duty and penalty or may send the document for impounding for collection of stamp duty and penargr in accordance with law. 34' As the matter is of the year 2oo9 and it appears trrat the entire trial has been concluded, the entire process of the impounding and collection of thr: stamp duty and penarty sha[ be concluded within one month from thr: date of receipt of a copy of this order and if the same is sent for thr: collection and impounding of the document, the collector shall c,rmplete the process within one month from the date of the receipt of thc document, failing which the parties may seek appropriate steps as contemplated under [aw. Miscellaner>us petirions, it any, pending in this revision petition shall stand closed. SD'- K.AMMAJI UTYREGI //TRUE COPY// SECTION OFFICER One Fair Col)y to the Hon'ble Sri Justice Narsing Rao Nandikonda (For His Lordships kind Perusal) To

1. The XIV Additional Chief Judge [Fast Track Court], City Civil Court, Hyderabad. 2. 11 LR Copies 3. The Under Secrelary. Union of lndia. Ministry of Law, Justice and Company Affairs, New Delh 4, The Secretary, Advocates Association Library, High Court for the State of Telangana, .High Court Buildings at Hyderabad Pratusha Vedula Chitra na, Advocate IOPUCI , Advocate [OPUC!

5. One CC to Sri. 6. One CC to SRl. 7. Two CD CoPies Pr/PSL W HIGH COI.'RT DATED: 1',711212025 LR copies to be marked \ \. R CRP.No.32{ll of 2017 1 B 'n',i'R t[tf t f ( ALLOWING THE CRP 4 \ '). *