1 Jagdish vs. Additional District Judge, Anoopgarh & Anr. (D.B.Civil Special Appeal (W)No.215/08) Date of Order:- 24.09.2008. HON'BLE THE CHIEF JUSTICE MR.NARAYAN ROY HON'BLE MR.JUSTICE SANGEET LODHA Mr.Mahaveer Bishnoi on behalf of Mr.Rakesh Arora, for the appellant. Mr.R.K.Singhal, for the respondents. 1. This special appeal is directed against order dated 1.2.07, passed by the learned Single Judge, whereby the writ petition preferred by the writ petitioner, appellant herein, assailing the validity of order dated 12.12.05 passed by the Additional District Judge, Anoopgarh in Civil Suit No.44/04, has been dismissed. 2. The plaintiff-appellant preferred a suit for specific performance of an agreement to sell dated 17.4.2000 said to have been executed in his favour by the defendant-respondent, in respect of an agriculture land ad measuring 25 bighas comprising chak 3 KNM I A Tehsil Gharsana district Sri Ganganagar. As per the terms of the agreement dated 17.4.2000, annexed with the writ petition as Annexure-1, the land was agreed to be sold for a consideration Rs.4,00,000/- and out of that Rs.3,00,000/- were paid in advance and the remaining amount was to be paid by 10.4.2005. The possession of the land in question was also handed over by the defendant-respondent to the plaintiff-appellant. 3. As per Article 23 of the Schedule appended to the Indian Stamp Act, 1899, as adapted in the State of Rajasthan, an agreement to sell of immovable property, wherein the possession of the property is transferred, is deemed to be a conveyance chargeable with the stamp duty @ 10% of the market value of the property. However, the aforesaid agreement executed in between the plaintiff-appellant and the defendant- respondent, bears the stamp of denomination Rs.100 only. Thus, realising the fact that the agreement is not sufficiently stamped, after framing of the issues, the plaintiff-appellant preferred an application before the 2 learned trial court praying for sending the document in question to the concerned Collector (Stamp) for impounding and determination of the amount of stamp duty and the penalty chargeable. The application preferred by the plaintiff-appellant was allowed by the learned trial court vide order dated 17.3.05 and the said agreement was referred to the Collector (Stamp), Hanumangarh, to do the needful. However, the plaintiff-appellant did not appear before the Collector (Stamp) on the date fixed by the learned trial court and even thereafter. The Collector (Stamp),Hanumangarh, determined the amount of stamp duty and penalty, however, the plaintiff-appellant failed to deposit the amount determined, as aforesaid, even after notice being served. Consequently, the document was returned by the Collector (stamp) to the learned trial court. 4. A specific issue has been framed by the learned trial court with regard to admissibility of the said agreement dated 17.4.2000, in evidence. In this view of the matter, during the course of plaintiff's evidence, an objection was raised by the defendant-respondent regarding the admissibility of the said document in evidence. After hearing both the parties, the learned trial court arrived at the finding that since the agreement dated 17.4.2000 is not sufficiently stamped and the plaintiff has failed to deposit the amount of stamp duty and penalty levyable as determined by the Collector (Stamp), therefore, the same cannot be permitted to be exhibited in evidence. Accordingly, the learned trial court vide order dated 12.12.05, impugned in the writ petition, holding the said document as inadmissible in evidence, has decided issue no.4 relating to the admissibility of the document in favour of the defendant- respondent and against the plaintiff. 5. The learned Single Judge after due examination of the matter, has declined to interfere with the impugned order dated 12.12.05 passed by the learned trial court. However, while dismissing the writ petition, the learned Single has observed that it will be open to the writ petitioner to 3 assail the correctness, legality and propriety of the impugned order by setting forth appropriate ground in appeal, if the writ petitioner so stands advised. 6. It is submitted by the learned counsel for the appellant that on account of unavoidable circumstances, the plaintiff-appellant could not deposit the amount of the stamp duty and penalty as determined by the District Collector(Stamps), Hanumangarh within the stipulated period. It is submitted that the suit for specific performance of the contract preferred by the plaintiff-appellant rests on aforesaid agreement dated 17.4.2000 alone, therefore, if the order passed by the learned trial court dated 12.12.05 is allowed to stand, then, the plaintiff-appellant's suit is bound to fail. The learned counsel submitted that in the interest of justice, the plaintiff-appellant may be granted one more opportunity to pay the amount of stamp duty and penalty, as determined by the Collector (Stamp). The learned counsel submits that the plaintiff- appellant is ready to deposit the amount of stamp duty and penalty within the time fixed by this Court. The learned counsel submitted that the defendant-respondent can also be compensated by imposing appropriate cost. 7. The prayer made on behalf of the plaintiff-appellant, as aforesaid, has been opposed by the learned counsel appearing on behalf of defendant-respondent. It is submitted by the learned counsel for the respondent that the plaintiff-appellant having failed to deposit the amount as determined by the Collector (Stamp) within the stipulated period, no further indulgence can be granted to the plaintiff-appellant by this Court. 8. It is true that the petitioner has failed to deposit the amount of stamp duty and penalty, as determined by the District Collector(Stamps), Hanumangarh within the stipulated period but, the fact remains that on the application preferred by the plaintiff-appellant himself, the document was sent by the learned trial court to the Collector (Stamp) for 4 impounding and determination of the amount of stamp duty and penalty chargeable, therefore, the bonafides of the plaintiff-appellant and his intention to deposit the amount cannot be doubted. It is to be noticed that the suit preferred by the plaintiff relates to the specific performance of the contract and the same is entirely based on the agreement dated 17.4.2000, which has been held to be inadmissible in evidence by the learned trial court. Thus, the learned counsel for the plaintiff-appellant is right in contending that if the order impugned passed by the learned trial court stands, then, the suit itself will fail. 9. Thus, keeping in view, the facts and the circumstances of this case, as noticed above, to meet the ends of substantial justice, we consider it appropriate to grant one more opportunity to the plaintiff- appellant to deposit the amount of stamp duty and penalty, as determined by the Collector (Stamp), Hanumangarh. 10. Accordingly, this special appeal is hereby disposed of in terms that the order impugned dated 1.2.07 passed by the learned Single Judge so also the order dated 12.12.05 passed by the learned trial court, shall stand set aside, provided the plaintiff-appellant deposits amount of stamp duty and penalty, as determined by the Collector (Stamp), Hanumangarh, and further pays cost quantified at Rs.3,000/-, to the defendant-respondent, within a period of one month from the date of this order. It is made clear that if the plaintiff-appellant fails to deposit the amount of stamp duty and penalty with the Collector (Stamp) or fails to pay the amount of cost to the defendant-respondent, within the stipulated period, the special appeal shall stand dismissed. (SANGEET LODHA),J. (NARAYAN ROY) CJ. Aditya/-