*THE HONOURABLE SRI JUSTICE P.S.NARAYANA +Crl.P. No.3404 of 2009 %12-08-2009 #T.A.Khaja Hussain ….petitioner Vs. $C.Irshad Basha Nizami …. Respondent !Counsel for the petitioner: Sri Dilipkumar Shiradkar Counsel for the Respondent: Sri K.Sita Ram <Gist : >Head Note: ? Cases referred: 1. AIR 1961 SC 1655 2. AIR 1973AP 342 (FB) 3. 1998(5)ALD 166 4.1997(1) ALD 246 HON’BLE SRI JUSTICE P.S.NARAYANA CIVIL REVISION PETITION No.3404 OF 2009 O R D E R: The Civil Revision Petition is coming up for admission. 2. Sri K.Sitaram, the learned counsel representing the respondent having lodged the caveat on behalf of the respondent, having made certain submissions, further made a request for the disposal of the Civil Revision Petition itself at the stage of admission. Sri Dilipkumar Shiradkar, the learned counsel representing the petitioner also made submissions touching the merits and demerits of the Civil Revision Petition and further made a request for the disposal of the Civil Revision Petition itself. Hence, at the stage of admission, the Civil Revision Petition is being disposed of finally. 3. The Civil Revision Petition is filed by the revision petitioner under Article 227 of the Constitution of India, being aggrieved by an order dated 22.6.2009 made in I.A.No.231 of 2009 in O.S.No.52 of 2007 on the file of the Senior Civil Judge, Adoni. 4. Sri Dilipkumar Shiradkar, the learned counsel representing the petitioner would maintain that the present revision petitioner filed an application in I.A.No.231 of 2009 in O.S.No.52 of 2007 as aforesaid, under Section 17 of the Registration Act r/w Sec.151 of the Code of Civil Procedure (hereinafter in short referred to as ‘ the Code’ for the purpose of convenience ) to impose stamp duty and penalty on the alleged agreement of sale dated 3.2.2007. The learned counsel also would maintain that though in the relief portion, the relief relating to the imposition of stamp duty and penalty alone has been prayed for, in the affidavit filed in support of the petition, the objection relating to the non-registration also had been taken. The counsel also would point out that the learned Senior Civil Judge, Adoni had not discussed anything relating to the aspect of registration. The counsel also would further maintain that the respondent in the Civil Revision Petition filed the suit for specific performance on the strength of the alleged agreement of sale dated 3.2.2007 against the petitioner/defendant in the suit. The petitioner filed a detailed written statement opposing the same. The learned counsel also had taken this Court through the contents of the affidavit filed in support of the application in I.A.No.231 of 2009 and also stand taken in the counter. The learned counsel would maintain that the mere fact that the document already had been marked as Ex.A.1 may not seriously alter the situation and in the light of the facts and circumstances, the learned Senior Civil Judge, Adoni should have allowed the said application filed by the petitioner instead of dismissing the same. Hence, the Civil Revision Petition to be allowed. The counsel also relied on certain decisions to substantiate his submissions. 5. Per contra, Sri K.Sita Ram, the learned counsel representing the respondent/plaintiff would maintain that when once the document had been marked as Ex.A.1, the question of raising objection would not arise. Especially, in the light of the language of Section 36 of the Indian Stamp Act, (hereinafter in short referred to as ‘the Act’ for the purpose of convenience), the counsel also would maintain that even otherwise this being a suit for specific performance, in the light of Section 49(c ) proviso of the Act, the other objection relating to non-registration cannot be said to be a serious one. Even otherwise, such objection had not been specified in the relief portion of the application and hence in the light of the reasons recorded by the learned Senior Civil Judge, Adoni, this is not a fit matter to be interfered with under Article 227 of the Constitution of India. 6. Heard the counsel. 7. The present Civil Revision Petition is filed by the unsuccessful petitioner-defendant in I.A.No.231 of 2009 in O.S.No.52 of 2007 on the file of the Senior Civil Judge, Adoni. The said application was filed under Section 17 of the Registration Act r/w Section 151 of ‘the Code’ to impose stamp duty and penalty on the alleged agreement of sale dated 3.2.2007. 8. In the affidavit filed in support of the said application, it is stated that the said document cannot be received in evidence even for collateral purpose, since the same is a compulsorily registerable document and further, another ground had been taken that the document is not sufficiently stamped and the same is liable for stamp duty and penalty. It is pertinent to note that in the application, the relief prayed for is, to impose stamp duty and penalty on the alleged agreement of sale dated 3.2.2007 in the interest of justice. It is no doubt true that the objection of non-registration also had been taken in the affidavit filed in support of the application. 9. In the counter filed, it is stated that the said agreement of sale was marked without any objection, and hence the petitioner has no right to question the same. Further it is stated that the agreement of sale is not required to be registered under the Act and the same can be marked in a suit for specific performance of agreement of sale. 10. The learned Senior Civil Judge, Adoni at para 4 of the order under challenge formulated the following point for consideration ie., “whether the document can be received or not”. The learned Senior Civil Judge, Adoni further recorded reasons at paras 6, 7 and 8 and referred to certain decisions and also Section 49 of the Act and ultimately came to the conclusion that the application filed by the petitioner is liable to be dismissed and accordingly the same was dismissed without costs. Aggrieved by the same, the present Civil Revision Petition had been preferred. 11. Section 49 of the Act, deals with effect of non-registration of documents required to be registered. Section 49(c ) proviso specifies that ‘no document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. Further the provision specifies provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter-II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 or as evidence of any collateral transaction not required to be effected by registered instrument”. 12. Section 36 of ‘the Act’ deals with “admission of instruments, where not to be questioned specifies where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped”. 13. Section 61 of ‘the Act’ deals with revision of certain decisions of courts regarding the sufficiency of stamps. 14. Reliance was placed on Javer Chand v Pukhraj Sarma[1], L.Sambasiva Rao v T.Balakotaiah[2], Palevala Suryanarayana v Mosa Kamaraju[3] and M.Narasimhulu v M.Laxmamma[4]. The fact that the document already was marked as Ex.A.1, is not in serious controversy. 15. In the light of the respective stands taken by the parties and the submissions made by the counsel on record and further in the light of the reasons recorded by the learned Senior Civil Judge, Adoni in the order under challenge in the present Civil Revision Petition, further in the light of Sections 35 and 36 and Section 49 of the Act and the decisions referred to supra, this Court is thoroughly satisfied that the impugned order does not suffer from any illegality whatsoever. 16. Accordingly, the Civil Revision Petition shall stand dismissed at the stage of admission. No order as to costs. _________________ P.S.NARAYANA,J 12th August, 2009. PNV [1] AIR 1961 SC 1655 [2] AIR 1973 AP 342 (FB) [3] 1998(5) ALD 166 [4] 1997(1) ALD 246