1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 2422 OF 2010 Dilip P. Bendre & Ors. ...Petitioners Versus Shriniwas N. Joshi ...Respondent Mr.Amogh Paralikar for the Petitioners Mr.S.N.Chandrachood for the Respondent CORAM:- R.Y.GANOO, J. DATED:- 7th SEPTEMBER, 2011. P.C. 1. Rule. 2. Rule made returnable forthwith. 3. Learned Advocate Mr. Chandrachood waives service on behalf of the respondent. By consent this petition is taken up for hearing. 4. Petitioners herein have filed Civil Suit No.377 of 2006 in the Court 2 of Small Causes at Pune against the respondent for recovery of the premises mentioned in the said suit. The respondent herein, in support of his case wanted to rely upon the document which is at page 37 of this petition, which is titled as Deed of Assignment of Development Rights. This document was sought to be produced by the defendant through his witness namely Mrs. Daya, defendant’s witness no.2. As this document was sought to be tendered in evidence, the petitioner herein filed application below Exhibit 118 as well as application below Exhibit 121. By application at Exhibit 118, the respondent objected to marking the document as exhibit as according to petitioner it was not properly stamped and registered. By application at Exhibit 120 the respondent prayed that the aforesaid document be impounded and sent to the concerned authorities under Bombah Stamp Act, 1958. (Hereinafter referred to said Act). 5. A reading of these two applications goes to indicate that the petitioners contended before the learned Judge of the Small Causes Court that as the said document is inadequately stamped and not registered, and it should not be taken on record and it cannot be 3 exhibited. It was also the contention of the petitioners that the learned Judge of the Court of Small Causes, should have impound the document in accordance with the provisions of Section 34 of the Bombay Stamp Act, 1958 (hereinafter referred to as “the said Act”) and sent it to the Appropriate Authority as mentioned in the said Act. 6. The learned Judge of the Small Causes Court has by Order dated 9th December, 2009 dismissed the said application below Exhibit 118. He has dismissed application below Exhibit 120 by order dated 30th January 2010. In substance, the stand taken by the petitioners is rejected. Against these two orders, this petition is filed. 7. Learned Advocate Mr. Chandrachud appearing on behalf of the respondent submitted that in the course of hearing of the aforesaid two applications, he had stated before the Court that his client is prepared to comply with the provisions of the said Act and despite that, these two orders have been passed. 8. I have heard learned counsels on both the sides. The stand taken by the petitioner that if the court comes to the conclusion that a 4 particular document is inadequately stamped, it is the duty of the Court to record a finding accordingly and send the document to the appropriate Government Authority for action in accordance with said Act is required to be accepted. 9. After having perused the order dated 9.12.2009 and order dated 30.1.2010, I am inclined to observe that the view taken by the learned Judge of the Small Causes Court is not correct. As and when the document is produced by a party before the Court, in the course of evidence or otherwise, it would be primary responsibility of the said court to ascertain whether the said document is properly stamped, particularly when the court is informed by other party that the said document is inadequately stamped. After considering the text of the document and appreciating the real intention of making of the said document, the said court is required to ascertain as to whether proper stamp duty as per the provisions of the said Act is paid. If the said court comes to the conclusion that proper stamp duty is paid, the Court will have to dismiss the objection raised by the party. If the court comes to the conclusion that the document is inadequately stamped, it would be the duty of the court to impound 5 the said document and send the document to the appropriate authority as per the provisions of the said Act for action under said Act. Such a document can be considered for being taken on record only after appropriate stamp duty and penalty, if any, is paid. 10.In the present case it is apparent that the learned Judge of the Court of Small Causes has not complied with the provisions of the said Act. It was obligatory upon the learned Judge to ascertain whether the said document was stamped. To that extent the learned Judge has erred. The view taken by the learned Judge is patently incorrect. 11.In the aforesaid circumstances, I am inclined to set aside the orders dated 9.12.2009 and 30.11.2010 below Exhibit 118 and 120 respectively and issue appropriate directions to the learned Judge of the Court of Small Causes so that the the points raised by the petitioners would get attended to. 12. It was also argued by learned Advocate for the petitioner that as the said document is not duly registered, the said document cannot be tendered in evidence. It will be open for the petitioner to raise this 6 objection, if at all the said document, duly stamped is placed before the Court as orders dated 9.12.2009 and 30.1.2010 are being set aside. 13.In view of the above discussion, this petition is disposed of by passing following order: ORDER i) Order dated 9.12.2009 passed below Exhibit 118 and Order dated 30.1.2010 passed below Exhibit 120 in Civil Suit No.377 of 2006, which is presently pending on the file of the Judge of Small Causes Court at Pune are set aside. ii) The document at page 37 of the petition which is titled as Deed of Assignment of Development Rights, which is relied upon by the respondent is already tendered in the court. The learned Judge of Small Causes shall peruse the said document, understand the nature of the document, apply the provisions of Bombay Stamp Act, 1958 and record finding whether the proper stamp duty is paid on the said document. If he comes to the conclusion that appropriate stamp duty 7 has been paid, he will proceed with the evidence of Mrs. Daya, D.W. 2 in accordance with the provisions of law and allow Mrs. Daya to lead evidence on that document. If the learned Judge of the Small Causes Court comes to the conclusion that the said document is inadequately stamped he has to pass an order thereby impounding the document as per the provisions of the Bombay Stamp Act, 1958 and take further steps as per the provisions of the Bombay Stamp Act, 1958 to see that the person who is interested in this document is permitted to pay the deficit stamp duty and penalty, if necessary, in accordance with the Bombay Stamp Act, 1958. If the said document duly stamped is produced in the court, the court shall attend to the said document in accordance with the provisions of law. (R.Y.GANOO, J.)