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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 292 of 2024 Pankajini Sahu @ Sahoo Petitioner Mr. Biplaba P.B. Bahali, Advocate .... -versus- Chatrubhuja Sahu @ Sahoo another …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 14.05.2024 2. 1. This matter is taken up through hybrid mode. 2. Order dated 18th November, 2023 (Annexure-7) passed in CS No.41 of 2010 is under challenge in this CMP, whereby learned Civil Judge (Senior Division), Athmallik allowed an application filed by the Defendants-Opposite Parties under Order XIII Rule 8 CPC read with Section 35 of the Indian Stamp Act, 1899 directing the Opposite Parties to impound the document executed on 11th January, 2002 on payment of deficit stamp duty. 3. Mr. Bahali, learned counsel submits that the suit has been filed for declaration of right, title, interest and for consequential relief. The Defendants, on their appearance, filed written statement. They also filed counterclaim stating that they have acquired right, title and interest over the suit property by virtue of an unregistered deed of exchange dated 11th January, 2002. Although the unregistered document was filed along with the written statement-cum-counterclaim, but no application for impounding the said document was filed immediately. After lapse of seven years from the date of institution of the suit, an application was filed with a prayer to impound the unregistered Page 1 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 // 2 // deed of exchange. The said application was rejected vide order dated 23rd November, 2017 (Annexure-5). Assailing the same, the Defendants/Opposite Parties preferred CMP No.1618 of 2017, which was disposed of on 28th July, 2023 directing learned trial Court to consider the petition afresh giving opportunity of hearing to the parties concerned. On remand, the impugned order has been passed. Hence, this CMP has been filed. 3.1 Mr. Bahali, learned counsel submits that the document in question has not seen the light of the day till the written statement-cum-counterclaim filed by the Defendants/Opposite Parties. The unregistered document is not admissible in evidence even for collateral purposes in view of Section 49 of the Indian Registration Act, 1908. Although Section 35 of the Stamp Act gives a scope to the Petitioner to pay the deficit stamp duty for making it admissible in evidence, but that itself does not confer any right on the party to seek for impounding the document at any stage of the suit. He also relied upon the case of Gangashankar Dubey Vs. Smt. Sindhu Bai (Misc. Petition No.591 of 2021 disposed of on 15th December, 2021), wherein, Madhya Pradesh High Court taking note of decision of the Hon’ble Supreme Court, held as under:- “5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. Further, the Hon’ble Supreme Court in the case of Avinash Kumar Chauhan (Supra) has held that an unstamped or insufficiently stamped document cannot be admitted in evidence for any purpose including for collateral Page 2 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 // 3 // purposes. However, such document can be received in evidence on payment of deficit duty and penalty in terms of Section 35 of the Indian Stamp Act 1899. In order to deal with different propositions, it may be safely concluded in the light of the above legal position as under : (i). The admissibility of a particular document in evidence is to be adjudged in light of the relevant provisions of the Act of 1908 as well as of the Indian Stamp Act 1899. (ii). As per the provisions of Section 17 and 49 of the Act of 1908, an unregistered document which is compulsorily registerable cannot be admitted in evidence except in a suit for specific performance of contract or as evidence of any collateral transaction, not required to be effected by registered instrument. (iii). The for which, collateral unregistered document is intended to be tendered in evidence, must be ‘independent of’ or ‘divisible from’ the very object and purpose of such document for which, it is executed. purpose (iv). No unregistered document which is compulsorily registerable can be admitted in evidence in the name of collateral purpose which would essentially tend to affect the right, title and interest of the parties for which, such document is executed; (v). An unstamped or insufficiently stamped document which is required to be stamped cannot be admitted in evidence for any purpose including collateral purpose. However, such document can be tendered in evidence after payment of deficit stamp duty and penalty as adjudicated by Collector (Stamps) under the provisions of The Indian Stamp Act 1899 subject to it’s admissibility under the provisions of the Act of 1908; (vi). If an unregistered document which is compulsorily registerable is found to be inadmissible in evidence under Section 49 of the Act of 1908, the same cannot be admitted in evidence even if, it is duly stamped as per the Indian Stamp Act, 1899. In the present case, the suit has been filed for declaration of title over the suit property on the basis of the deed alleged to have been executed by the son of plaintiffs giving up his rights over the property in favour of his mother. Thus, the document in question is certainly a relinquish deed which is compulsorily registerable under Section 17 (B) of the Act of 1908, therefore, as per Section 49 of the Act of 1908, the same cannot be admitted in evidence to establish the right, title and interest of the plaintiffs over the suit property. Page 3 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 // 4 // The plaintiffs intend to use this relinquish deed for the purpose to establish their possession over the property in the name of collateral purpose, but such purpose cannot be termed as ‘independent of’ or ‘divisible from’ the very purpose of this document in any manner. If in the garb of such collateral purpose, this relinquish deed is admitted in evidence, the very object of the provisions of Section 17 and 49 of the Act of 1908 would be redundant and frustrated. Thus, the document in question cannot be admitted in evidence, for the said collateral purpose. It cannot be disputed that an unstamped or insufficiently stamped document can be admitted in evidence on taking deficit stamp duty and penalty as adjudicated under the provisions of The Indian Stamp Act 1899, but the pre- condition is that such document should be admissible in evidence as per proviso to Section 49 of the Act of 1908. As mentioned above, the relinquish deed in question is not admissible in evidence for the said collateral purpose even if it would have been duly stamped, therefore, no fruitful purpose would be served by impounding the same for levy of deficit stamp duty and penalty under the Indian Stamp Act. In the judgments cited by the learned counsel for the plaintiffs, the documents in question were allowed to be used in evidence for collateral purposes, in the peculiar facts the and circumstances of each case and accordingly document (s) were impounded and directions were issued to use the same in evidence after payment of deficit stamp duty and penalty as per the provisions of The Indian Stamp Act 1899. But, in none of these cases, unregistered relinquish deed was allowed to be taken in evidence for the collateral purpose to establish the possession over the suit property as claimed in this case. Thus, all these judgments are quite distinguishable and accordingly, are not applicable to this case. Rather as discussed above, in the light of legal position expounded in above cited cases, the relinquish deed in question cannot be admitted in evidence even if it was duly stamped. In view of the above discussion and for the reasons stated, this court is of the firm opinion that learned trial court has not committed any illegality in passing of the impugned order. The present petition has no merit and accordingly the same is dismissed. No order as to the costs.” It is further submitted that the suit is at the stage of argument and if at this stage, a document is impounded and admitted in Page 4 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 // 5 // evidence, the Plaintiff/Petitioner would be seriously prejudiced. Defendants by impounding the document are making an attempt to patch up the lacuna in the case. In absence of the deed of exchange, they have no case against the Petitioner. If such a document is admitted in evidence, the Plaintiff will lose a valuable right over the suit property. Hence, he prays for setting aside the impugned order. 4. Taking note of the submission of learned counsel for the Petitioner, this Court finds that the petition under Order XIII Rule 8 CPC read with Section 35 of the Stamp Act was filed in the year 2017 in course of trial of the suit. The said application was rejected on the ground that it is hopelessly delayed. This Court while setting aside the impugned order, directed for fresh consideration of the petition on its own merit. In the meantime, trial of the suit has proceeded and the suit is posted for argument. The document, i.e., the unregistered deed of exchange dated 11th January, 2002 has been marked as Ext. ‘B’ with objection. Law is well-settled that an unregistered document is not admissible in evidence, but adequate provision has been made to make it admissible by impounding the same on payment of deficit stamp duty. When an application is made, it is obligatory on the part of the Court to direct the parties to pay the deficit stamp duty to make it admissible. On payment of stamp duty, the document does not become admissible in evidence without following the rigorous of law. Thus, the burden for admitting and proving the document still lies on the party seeking to impound the same. In the instant case, the Page 5 of 6 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 // 6 // document has already been exhibited as Ext. ‘B’ with objection. Thus, the burden is on the Defendants to establish that the document is admissible in evidence. The Defendants are also required to prove its contents. In that view of the matter, this Court does not find any infirmity in the impugned order. 5. Accordingly, the CMP is dismissed being devoid of any merit. 5.1 Since the suit is of the year 2010, learned trial Court should make an endeavour for early disposal of the suit in accordance with law. s.s.satapathy (K.R. Mohapatra) Judge Page 6 of 6