1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3823 OF 2008. Revanand S/o Madhav Dhake and another ... Petitioners. Versus Narayan S/o Madhav Dhake and others ... Respondents. ... Mr.S.B.Yawalkar, advocate for the petitioners. Mr.D.R.Korde Patil, advocate for Respondent Nos. 2-a,2-b,2-d,2-e and 4-a. Mr.A.M.Gholap, advocate for the Respondent No.1. Respondent Nos.2-c and 5 served. ... CORAM : V.R.KINGAONKAR,J. Date : 10.06.2009. PER COURT 1. By this petition, the petitioners challenge order dated 15.2.2008, rendered by 2 learned Civil Judge (S.D.), Jalgaon, on an application (Exh.84) in Special Civil Suit No. 69/2003. By the impugned order, the learned Civil Judge, allowed request of the plaintiff to pay the amount of stamp duty chargeable on the unregistered document dated 22.8.2002 styled as partition deed. 2. The Respondent filed suit for partition and separate possession of various properties. The Respondent (plaintiff) asserted that he and the petitioner No.1 (defendant No.1) are the real brothers interse and have inherited various properties and there are some properties acquired by their joint family. His case before the trial Court is that on 22.8.2002, a deed of partition was executed between himself and the defendant Nos.2 and 3 in regard to the properties indicated in Schedule "C". He produced the said unregistered partition deed in support of the contention about such division. The petitioners objected the said document on the ground that it is unregistered and improperly stamped. They submitted an application to the effect that 3 without payment of appropriate stamp, the said document can not be referred to. The unregistered partition deed dated 22.8.2002, therefore, impounded as per order passed on their application (Exh.40), the Respondent was directed to pay deficit stamp duty and penalty on the impounded document. The Respondent thereafter filed Purshis dated 2.9.2006 and informed thereby that he was not willing to pay the stamp duty. He urged that the defendants/petitioners may be called upon to cross-examine him and his witnesses. The unregistered partition deed was thus taken in the custody of the Court and was sent to the concerned Assistant Superintendent, (C & F). The Respondent and his witnesses were cross-examined thereafter on their affidavits. 3. At the stage of evidence, particularly, cross-examination of the petitioners/defendants, the Respondent submitted an application to allow him to pay the stamp duty on the impounded document. The application (Exh.84) has been granted by the learned Civil Judge. Hence, the petition. 4 4. Heard learned counsel for the parties. 5. Mr.Yawalkar, strenuously contended that the Respondent is estopped from making payment on the unregistered partition deed when earlier he had declined to pay such amount. He argued that ulterior purpose of such subsequent act of the Respondent is to reopen the entire case on the basis of the unregistered partition deed. He contended that the Respondent is estopped from using the document,once his evidence is closed. He would submit that the Respondent has referred the said document in his affidavit and when the cross-examination is over, allowing of the document to be tendered in evidence, is likely to impair the rights of the petitioners. Hence, he urged to quash the impugned order. Mr.Gholap supports the said order. 6. There are two facets of the issue involved in the instant petition. Once, the payment of deficit stamp is unconnected with right of a party to use the document. Second aspect is regarding legality of the use of said 5 document during the trial. It is true, no doubt, that initially the Respondent declined to pay the deficit stamp duty and requested that the Court may allow the hearing of the suit to go further with direction to the defendants/petitioners to cross-examine him and his witnesses. Accordingly, they were cross-examined and the trial is at the stage of the evidence of the petitioners. The trial Court may not allow use of the unregistered document by the Respondent(plaintiff) inasmuch as it is not proved by him. The Court may, on request of the petitioners expunge/remove relevant paragraphs from affidavits of the Respondent and his witnesses which are in the context of document of partition dated 22.8.2002. For, merely on the basis of such statement in the affidavit, the document can not be treated as proved merely after completing formality of the payment of deficit stamp duty. Needless to say, this is a procedural part pertaining to conduct of the trial. 7. So far as right of the 6 Respondent(plaintiff) to pay the deficit stamp duty is concerned, it may be gathered that when he produced the said document and the same has been impounded, whether he is willing to pay the deficit stamp duty or not, the same is recoverable from him as a result of the act of impounding of the document. In the process of recovery of such stamp duty, he may voluntarily come forward to pay the same and nothing required to pay the same under duress. It is duty of the Collector to recover such duty alongwith penalty in cases of the documents which are impounded. Consequently, permission granted by the Court vide the impugned order can not be legally faulted with. The impugned order shows that the learned Civil Judge allowed payment of the deficit stamp duty alongwith the penalty on the unregistered document which was impounded. The impugned order does not show that the learned Civil Judge has permitted the Respondent (plaintiff) to use the said document in his evidence. Therefore, it can not be said that the petitioners are prejudiced by the impugned order rendered by the learned Civil Judge. 7 8. Considering the foregoing reasons, I do not find any substance in the instant petition. It is pertinent to note that the Respondent No.1 has already paid the deficit stamp duty and the penalty. So, if the said document is being used by him during the trial then the petitioners will be at liberty to raise objection as would be permissible under the law. With these observations, the petition is dismissed. (V.R.KINGAONKAR,J.) asp/office/wp382308