Karnataka High Court
Ismail vs T N Girish on 15 July, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.24989/2018 (GM-CPC)
BETWEEN:
1. ISMAIL
AGED ABOUT 58 YEARS.
2. AKMAL
AGED ABOUT 46 YEARS.
3. AJMAL
Digitally signed
AGED ABOUT 46 YEARS.
by RUPA V
Location: High 4. ATHEEK
Court of AGED ABOUT 36 YEARS.
karnataka
PETITIONERS ARE SONS OF
LATE KADAR MOHIDDIN
AGRICULTURISTS
R/OF. M.G. ROAD, TARIKERE
TARIKERE TALUK-577144
CHIKKAMAGALURU DISTRICT.
...PETITIONERS
(BY SRI. S.V. PRAKASH, ADV.,)
AND:
T.N. GIRISH
S/O T.H. NAGARAJ
AGED ABOUT 34 YEARS
AGRICULTURIST
R/O M.G.ROAD, TARIKERE
TARIKERE TALUK-577144
CHIKKAMAGALURU DISTRICT.
...RESPONDENT
(BY SRI. H.K. RAVI, ADV., FOR SRI. H. KANTHARAJA, ADV.,)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI AND SET ASIDE THE ORDER DATED
24.1.2018 SEEKING OPINION OF THE DISTRICT REGISTRAR IN
REGARD TO CALCULATION OF STAMP DUTY PAYABLE ON THE
DOCUMENTS IN QUESTION IN O.S.71/2015 ON THE FILE OF
LEARNED SR. CIVIL JUDGE, TARIKERE PRODUCED AS ANNEX-G TO
THE WRIT PETITION.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed seeking the following relief:
“a) Issue a writ in the nature of certiorari and set aside
the order dated 24.01.2018 seeking opinion of the District
Registrar in regard to calculation of stamp duty payable
on the documents in question in O.S.No.71/2015 on the
file of learned senior Civil Judge, Tarikere produced as
Annexure-G to the writ petition.”
2. Sri.S.V.Prakash, learned counsel appearing for the
petitioners submits that the respondent-plaintiff has filed a suit
for specific performance and in the said suit the petitioners-
defendants filed detailed written statement. During the course
of evidence the petitioners produced two instruments dated
15.05.2010 and 19.04.2012; however, the respondent-plaintiff
opposed the same stating that the instruments are in the
nature of agreements, they are deficiently stamped and
requested the trial Court to impound the same, impose duty
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and penalty. It is submitted that trial Court without following
the procedure contemplated under Sections 33 & 34 of the
Karnataka Stamp Act, 1957, (for short, ‘the Act’) passed an
unique order of sending those instruments to the District
Registrar, Chikkamagalur, to assess the stamp duty and the
penalty and pursuant to the said request of the Court, the
District Registrar, Chikkamagalur, on 06.02.2018, as at
Annexure-H assessed the stamp duty and penalty. It is further
submitted that the trial Court has delegated its power of
impounding and calculation of duty and penalty to the District
Registrar, which is impermissible. It is also submitted that
Section 33 of the Act is very clear that the Court has to form its
opinion on the instruments, taking note of the nature of
instruments, form its opinion as to whether those instruments
are liable for duty and penalty and without doing so, the trial
Court has delegated the judicial power to the District Registrar,
which is impermissible. In support of his contention and to
explain the scheme of the Act, he has placed reliance on the
decision of this Court in the case of Smt.Savithramma R.C. v.
M/s.Vijaya Bank represented by its Manager, Bangalore
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and Another1. Hence, he seeks to allow the petition by setting
aside the impugned order.
3. Per contra, Sri Ravi H.K., learned counsel for the
respondent-plaintiff supports the impugned order of the trial
Court and submits that the writ petition itself is premature as
no order has been passed by the trial Court on the instruments
produced by the petitioners herein with regard to the payment
of duty and penalty. It is submitted that the trial Court to form
its opinion as to whether the instruments require duty and
penalty, has sent the instruments to the Officer under the Act
and he has calculated the duty and intimated the same as per
the Annexure-H. Hence, he seeks to dismiss the petition.
4. I have heard the arguments of learned counsel for
the petitioners, learned counsel for the respondent,
meticulously perused the material available on record. I have
given my anxious consideration to the submissions advanced
on both sides.
1
2015 (3) KCCR 2479
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5. The respondent has filed O.S.No.71/2015 seeking
for the relief of specific performance of an agreement dated
11.02.2014. The petitioners defended the said suit by filing the
written statement. During the course of evidence of the
petitioners-defendants, defendants have produced two
documents dated 15.05.2010 and 19.04.2012 to support the
plea. The respondent-plaintiff opposed the production of those
documents during the evidence and for marking on the ground
that the instruments are in the nature of agreements, they are
deficiently stamped and requested the trial Court to impound
the same, calculate the stamp duty and penalty and direct the
petitioners to pay the same. The trial Court considering the
opposition of the respondent-plaintiff, on 24.01.2018 under the
impugned order directed the District Registrar, Chikmagalur, to
calculate the stamp duty on those instruments and forwarded
those instruments. Pursuant to the said order of the trial Court,
the District Registrar, Chikamagalur, on 06.02.2018 calculated
the duty payable on those instruments, which are under
challenge in the present petition.
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6. This Court in the case of Smt.Savithramma R.C.
referred supra referring to the decision in the case of K.
Amarnath v. Smt. Puttamma 2, wherein this Court at
paragraph No.10 has held as under:
“10. A duty is cast upon every Judge to examine every
document that is sought to be marked in evidence. The
nomenclature of the document is not decisive. The question of
admissibility (with reference to Section 34 of Karnataka Stamp
Act, or Section 35 of Indian Stamp Act and Section 49 of
Registration Act) will have to be decided by reading the document
and deciding its nature and classification. The tendency to mark
documents without inspection and verification should be
eschewed. Even while recording ex parte evidence or while
recording evidence in the absence of the Counsel for the other
side, the Court should be vigilant and examine and ascertain the
nature of the document proposed to be marked and ensure that it
is a document which is admissible. The Court should not depend
on objections of the other Counsel before considering whether the
document is admissible in evidence or not. Section 33 of the
Stamp Act casts a duty on the Court to examine the document to
find out whether it is duly stamped or not, irrespective of the fact
whether an objection to its marking is raised or not. It should be
borne in mind that once a document is admitted in evidence, it
cannot be called in question thereafter on the ground that it was
not duly stamped. Once the Court admits a document even
wrongly, such admission becomes final and cannot be reopened.
Hence, the need for diligence not only on the part of the opposite
Counsel, but also on the part of the Court having regard to the
statutory obligation under Section 33 of Karnataka Stamp Act.
11. A combined reading of Sections 33, 34, 35, 37 and 41 of
the Karnataka Stamp Act requires the following procedure to be
adopted by a Court while considering the question of admissibility
of a document with reference to the Stamp Act: (a) when a
document comes up before the Court, it has to examine and
determine whether it is properly stamped. When the other side
objects to it, the Court should consider such objection and hear2
2000 (4) Kar.L.J. 55
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both sides; (b) after hearing, if the Court comes to the conclusion
that the document has been duly stamped, it shall proceed to
admit the document into evidence; (c) on the other hand, if the
Court comes to the conclusion that the document is not stamped
or insufficiently stamped, it shall pass an order holding that the
document is not duly stamped and determine the Stamp
duty/deficit stamp duty and penalty to be paid and fix a date to
enable the party who produces the document to pay the Stamp
duty/deficit Stamp duty plus penalty; (d) if the party pays the
duty and penalty the Court shall certify that proper amount of
duty and penalty has been levied and record the name and
address of the person paying the said duty and penalty and then
admit the document in evidence as provided under Section 41(2);
and the Court shall send an authenticated copy of the instrument
to the District Registrar together with a Certificate and the
amount collected as duty and penalty, as provided under Section
37(1); (e) if the party does not pay the duty and penalty, the
Court will have to pass an order impounding the document and
send the instrument in original, to the District Registrar for being
dealt with in accordance with law as per Section 37(2) of the
Karnataka Stamp Act.”
7. Keeping in mind the enunciation of law laid down by
this Court, wherein this Court has held that the Court should
not depend on the objections of the other counsel before
considering whether the document is admissible in evidence or
not. Section 33 of the Act casts a duty on the Court to examine
the document and to find out whether it is duly stamped or not,
irrespective of the fact whether an objection to its marking is
raised or not. In my considered view, the trial Court has
committed grave error in directing the District Registrar to
calculate the stamp duty on the instruments. It is the duty of
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the Court under Section 33 of the Act to firstly form an opinion
as to whether the instrument is duly stamped or not and if not
duly stamped, impound such instrument and thereafter
calculate the duty and penalty payable as per the provision of
the Act and then direct the party, who claims to rely on the said
document, to pay the same and thereafter, if the said party is
aggrieved, then his remedy lies elsewhere. In the instant case,
no such procedure is followed. Hence, I am of the view that the
writ petition deserves to be allowed. Hence, for the
aforementioned reasons, I proceed to pass the following
ORDER
i. Writ petition is allowed in part.
ii. The impugned order dated 24.01.2018 passed
in O.S.No.71/2015 by the Senior Civil Judge,
Tarikere, Chikmagalur, is hereby set aside.
iii. The trial Court is directed to consider and form
the opinion as to whether there is any deficit in
the stamp duty paid on the instruments dated
19.04.2012 and 15.05.2010 and if found, then
direct the petitioners to pay the duty and
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calculate the penalty and direct them to pay
the same.
No orders to cost.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
BSR
List No.: 1 Sl No.: 25
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