HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR Dated 24-06-2010 C.R.P. No.431 of 2008 Between: Gorle Swamy Naidu. …Petitioner. And: Galla Appala Naidu. …Respondent. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.431 of 2008 ORDER: The defendant in O.S.No.186 of 2004 on the file of the Senior Civil Judge, Vizianagaram has filed this Civil Revision Petition aggrieved by the Court below marking agreement of sale as Ex.A.1. 2. The learned counsel for the petitioner states that the respondent herein filed the suit for specific performance based upon the agreement of sale dated 16-8-1999. In support of the claim of the respondent, he produced the said document. The petitioner states that he has filed a memo in the Court as early as on 9-4-2007 objecting to receiving and marking of the said document on the ground that the said agreement of sale is neither properly stamped nor is registered and as such, the same cannot be received in evidence. 3. The grievance of the petitioner is that not withstanding the fact that the said objection raised as early as on 9-4-2007, the Court below has marked the said document while recording the evidence of P.W.1 on 19-12-2007. Oral objection of the petitioner raised at the time of the said document marking was also not recorded. But the Memo filed earlier by the defendant after duly serving a copy thereof to the learned counsel for the respondent herein is available on record and certified copy of the same is produced in this revision. 4. Learned counsel also relies upon the decision of this Court reported in POLA SATISH KUMAR v. M/s. KAPIL CHIT FUNDS Pvt. Ltd., WARANGAL, REP. BY ITS FOREMAN AND OTHERS ([1]) wherein this Court held that under Section 35 of the stamp Act, when a document is objected to on the ground of being deficient in stamp duty, the said objection has to be decided by the Court before proceeding further. 5. Learned counsel for the respondent places reliance upon another decision of this Court in R. VISWANATHAM SETTY vs. T.LAKSHMINARASAMMA AND OTHERS ([2]) for the proposition that the agreement by itself does not create any rights and no title passes to the purchasers and therefore, registration thereof is not necessary. 6. The issue regarding the objection as to the stamp duty and registration on the suit document arises in different situations. The agreement of sale in the present case does not show that possession was delivered to the purchaser; in which case, the learned counsel for the petitioner also agrees that the objection relating to non-registration may not survive. However, the objection relating to the deficiency regarding stamp duty survives and under Section 35 of Stamp Act, when the petitioner has raised the said objection at the earliest point of time on 9-4-2007 itself, the Court below has apparently over looked the same and marked the said document as Ex.A.1 on 19-12- 2007 while recording chief examination of P.W.1. Petitioner’s objection having not been considered and in view of the decision of the learned Single Judge in the decision 1st cited, the Court below is directed to permit both sides to make submissions with regard to the objection as to the stamp duty on the said document and decide as expeditiously as possible the objection raised by the petitioner regarding deficiency of stamp duty and subject to the orders, the Court below on such objection, proceed further with the suit. The document already marked as Ex.A.1 shall abide the result of the orders of the Court below while adjudicating the objection as to the stamp duty as referred to above. 7. This Civil Revision Petition is disposed of with the above direction. No costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 24-06-2010. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.431 of 2008 Dated 24-06-2010 [1] 2007 (6) ALT 421 [2] 2000 (5) ALT 165