IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 47 of 2010 Puneet Shanker ….Defendant-Revisionist Versus Joga Singh …Plaintiff-Respondent. Sri Sudhir Kumar, Advocate present for the defendant-revisionist. Sri R.C. Upadhyay, Advocate present for the plaintiff-respondent. Hon’ble Sudhanshu Dhulia, J. (oral) Heard Sri Sudhir Kumar, Advocate for the defendant- revisionist as well as Sri R.C. Upadhyay, Advocate for the plaintiff-respondent. The revisionist before this Court was defendant in a suit which was for permanent injunction and cancellation of a sale deed which was executed by the plaintiff in favour of the defendant. Along with the plaint, the plaintiff had filed a copy of agreement for sale which was admittedly not registered or stamped. Immediately an objection was taken by the defendant that such a document is not admissible in evidence as it is neither stamped nor registered. Reliance has been placed by the revisionist on Sections 33 and 35 of the Indian Stamp Act, 1899 (from hereinafter referred to as the Act). Section 33 of the Act reads as under :- “33. Examination and impounding of instruments.- (1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain 2 whether it is stamped with a stamp of the value and description required by the law in force in [India] when such instrument was executed or first executed: Provided that- (a) nothing herein contained shall be deemed to require any Magistrate or judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, (5 of 1898); (b) in the case of a judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purpose of this section, in cases of doubt- (a) [the [State Government]] may determine what offices shall be deemed to be public offices; and (b) [the State Government]] may determine who shall be deemed to be persons in charge of public offices. Section 35 of the Act reads as under :- “35. Instruments not duly stamped inadmissible in evidence, etc.-No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that- (a) any such instrument [shall], be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; 3 (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Proceeding, 1898 (5 of 1898); (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of [the [Government]] or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act. Evidently, the plaintiff was relying upon a document the veracity of which was questioned on the grounds that it was not properly stamped or registered and law provides that such a document, inter alia, when presented before a court which has power to see the evidence can impound such a document. The learned Civil Judge (Senior Division) before whom the matter was considered, has passed the impugned order by which the application of the revisionist for impounding the aforesaid agreement for sale has been rejected. However, what is important is that the court below has arrived at the conclusion that the admissibility of the document shall be seen on its merits 4 later. On these facts, the application of the revisionist has been rejected. This Court is totally in agreement with the order of the court below and hence no interference is called for by this Court in the revisional jurisdiction. However, the revisionist is at liberty to challenge the veracity of the said document by placing before the court below any evidence, which he so desires. Further, counsel for the revisionist has also relied upon Section 33 of the Act. Needless to say that on a bare perusal of aforesaid Sections makes it very clear that Section 33 is only an enabling provision which gives, inter alia, powers to the court to impound such an instrument in a given case. Firstly, that stage has not reached before the court below as yet, as the court below has clearly stated that the veracity of the document is subject matter to be considered on its merit and therefore the court below has merely postponed this issue, which will be examined later. Based on what has been stated in the impugned order, no interference is called for. Counsel for revisionist has cited a judgment in his favour, namely, Avinash Kumar Chauhan Vs. Vijay Krishna Mishra AIR 2009 SC 1489. He has particularly relied upon paragraphs 17 and 21 of the said judgment which are quoted below :- “ 17. We have noticed heretobefore that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The Court being an authority to receive a document in evidence is bound to give effect thereto.” “21. Section 35 of the Act, however, rules out applicability of such provisions as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purpose for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.” 5 This Court has already stated above that the stage has not reached before the court below where the veracity of the document could be examined in terms of Sections 33 and 35 of the Act, and has therefore rightly dismissed the application of defendant/revisionist for impounding of the document. The Revision is totally without merit and is liable to be dismissed and is hereby dismissed. No order as to costs. Interim order, if any, stands vacated. (Sudhanshu Dhulia, J.) 8.3.2011 Avneet