petition for Impounding of a document =trial Court grossly erred in rejecting the petition on the ground that boundaries of both the properties are different.=when a document is produced (or comes in the performance of his functions) before a person who is authorized to receive evidence and a person who is in charge of a public office (except a police officer) before whom any instrument chargeable with duty is produced or comes in the performance of his functions, it is the duty of such person before whom the said instrument is produced to impound the document if it is not duly stamped. The use of the word 'shall' in Section 33(1) shows that there is no discretion in the authority mentioned in Section 33(1) to impound a document or not to do so. In our opinion, the word 'shall' in Section 33(1) does not mean 'may' but means `shall'. In other words, it is mandatory to impound a document produced before him or which comes before him in the performance of his functions.=So at the stage of impounding the document, the trial Court, in my considered view, need not probe into the fact whether the said document will pass the test of relevancy to be admissible in evidence. That aspect can be relegated to a later stage. It must also be noted that the mortgage deed is an unregistered one. Hence, whether the said document can be admitted in evidence for collateral purpose under Section 49 of Indian Registration Act can also be looked into at the time when the document is actually tendered in evidence on behalf of defendant. whether the said document can be admitted in evidence for collateral purpose under Section 49 of Indian Registration Act can also be looked into at the time when the document is actually tendered in evidence on behalf of defendant. At that stage the defendant has to convince to the satisfaction of the trial Court that property covered by plaint schedule and mortgage deed is in fact one and the same and it is relevant for the purpose of proving his case and further, the same is admissible in evidence for collateral purpose. Hence, what is pertinent at this stage is only to impound the document and collect the proper stamp duty and penalty under the relevant provisions of Indian Stamp Act. Therefore, impugned order is liable to be set aside.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

C.R.P. No.3003 of 2015

03-09-2015

Trinadha Patro  . Petitioner

Lingaraj Rana . Respondent

Counsel for Appellant: Sri K. Manik Prabhu

Counsel for Respondent : Sri B.Ramesh

<Gist:

>Head Note:

?Cases referred:
1)AIR 2008 SC 1640

HONBLE SRI JUSTICE U. DURGA PRASAD RAO        

CRP No.3003 of 2015

ORDER:
     In this revision filed under Article 227 of the Constitution of India, the
petitioner/defendant challenges the order dated 26.06.2015 in I.A.No.125 of
2015 in O.S.No.43 of 2014 passed by Principal Junior Civil Judge, Sompeta
whereby and whereunder the learned Judge dismissed the petition filed under
Section 35 of Indian Stamp Act requesting the Court to impound the petition
mentioned unregistered mortgage deed dated 31.03.2003.
2)      Factual matrix of the case is thus:
a)      The respondent/plaintiff filed O.S.No.43 of 2014 against the
petitioner/defendant seeking perpetual injunction in respect of plaint schedule
vacant site situated in Gandhipeta Baruva village, Sompeta Mandal of
Srikakulam District pleading that originally plaint schedule property was a
thatched house belonging to his paternal-grand-fatherBollobho Narayana
Rono and after him it devolved on his only sonTarini Rono and later the
said property was devolved on his four sons i.e. plaintiff and his three
brothers and as the brothers of the plaintiff are settled in different places
for
their livelihood, plaintiff has been managing the plaint schedule property and
during the course of time the thatched house collapsed and plaint schedule
property remained as vacant site.  It is further pleaded that plaintiff and his
brothers are the absolute owners and defendant has nothing to do with the
plaint schedule property. However, the defendant started proclaiming that he
will trespass into plaint schedule property illegally.
        Hence the suit for injunction.
b)      Defendant filed written statement denying all the material averments in
the plaint contending that the plaint schedule thatched house is the ancestral
property of one Sakula Madhava Rao and after his death it devolved on his
only sonJoga Rao and the said Joga Rao wanted to migrate to Calcutta to
eke-out his livelihood and for this purpose he needed money and so he
mortgaged the plaint schedule property which was originally a thatched
house to plaintiff for Rs.11,000/- under an unregistered mortgage deed dated
31.03.2003 and delivered possession of the said house to defendant and since
then defendant has been in possession and enjoyment of the same. His further
contention is that subsequently the thatched house was collapsed in the year
2009 and suit property became vacant site and it was in possession of the
defendant.  He denied the ownership and possession of plaintiff in respect of
pliant schedule property.
c)      While so, during trial the defendant filed a petition I.A.No.125 of 2015
under Section 35 of Indian Stamp Act requesting the trial Court to impound
the mortgage deed dated 31.03.2003.  The trial Court however dismissed the
said petition on the main ground that boundaries of plaint schedule property
and mortgaged property are different from each other and so, the property
covered by mortgage deed dated 31.03.2003 has nothing to do with the plaint
schedule property.
        Hence the instant CRP.
3)      The parties in the CRP are referred as they stood before the trial Court.
4)      Heard arguments of Sri K.Manik Prabhu, learned counsel for petitioner
and Sri B.Ramesh, learned counsel for respondent.
5)      Challenging the impugned order, learned counsel for
petitioner/defendant argued that the trial Court grossly erred in rejecting the
petition on the ground that boundaries of both the properties are different.  He
argued that Northern boundary of both the properties which is a permanent
boundary is the same. Similarly, Southern boundary which is a Zinc sheet
roofed house of Pondara people is also same for both the properties and
difference, if any, is only in respect of Eastern and Western boundaries,
which the defendant will explain when the mortgage deed is tendered in
evidence and therefore, the trial Court was not justified in rejecting the
document at the threshold without impounding the same.  He thus prayed to
allow the CRP.
6)      Per contra, learned counsel for respondent/plaintiff while supporting
the impugned order vehemently argued that boundaries of both the properties
are quite different from each other and so, the trial Court rightly rejected the
petition to impound the mortgage deed since the mortgage deed has no
relevancy in evidence.  He thus prayed to dismiss the CRP.
7)      In the light of above rival arguments, the point for determination in this
CRP is:
Whether the order of the trial Court is sustainable under law
8 a) POINT:  As can be seen from the respective pleadings, the plaintiff and
defendant are making rival claims in respect of plaint schedule vacant site.
The defendant has come up with unregistered mortgage deed dated
31.03.2003 claiming that Joga Rao mortgaged the said property to him for
Rs.11,000/- and executed unregistered mortgage deed in his favour. To prove
his contention, he produced the said document and since it is deficiently
stamped document, he requested the Court to impound the same for
collection of stamp duty and penalty. The trial Court rejected the petition on
the main ground that boundaries of plaint schedule vacant site and mortgaged
property are different.  I am unable to appreciate the reason shown by the
trial Court.
b)      It must be noted that admissibility and relevancy are two tests for
judicial approval of the evidence tendered by a party. In respect of
documentary evidence also the Court shall apply these two tests before
admitting the document into evidence. Admissibility of a document in
evidence means the admissibility under the provisions of Indian Evidence
Act and also other enactments such as Indian Stamp Act, Registration Act
etc.  So, before approving a document for evidence, the Court has to apply its
judicial consideration as to whether the document produced is hit by any of
the provisions of Indian Evidence Act or other laws. It is only when the
document is not hit by provisions of any such enactments the Court shall
admit the same in evidence.
c)      Then, sofaras relevancy of the evidence is concerned, evidence
produced by a party shall pass the test of relevancy applied under Sections 5
to 55 of Indian Evidence Act i.e. the evidence must be relevant to the fact in
issue in one of the ways prescribed under Sections 5 to 55 of the Evidence
Act.  Thus, admissibility and relevancy are two different concepts.
d)      In the instant case, since the mortgage deed dated 31.03.2003 in issue
is not duly stamped and registered, it is inadmissible in evidence and it is
liable to be impounded under Section33 of the Indian Stamp Act.  The Court
shall impound the mortgage deed and collect the requisite stamp duty and
penalty under Section 35 of the Indian Stamp Act.
9)      The Apex Court reiterated this aspect in Government of Andhra
Pradesh v. Smt. P.Laxmi Devi  as follows:
12. A perusal of the said provision shows that when a document is
produced (or comes in the performance of his functions) before a
person who is authorized to receive evidence and a person who is in
charge of a public office (except a police officer) before whom any
instrument chargeable with duty is produced or comes in the
performance of his functions, it is the duty of such person before
whom the said instrument is produced to impound the document if it
is not duly stamped. The use of the word 'shall' in Section 33(1)
shows that there is no discretion in the authority mentioned in
Section 33(1) to impound a document or not to do so. In our opinion,
the word 'shall' in Section 33(1) does not mean 'may' but means
`shall'. In other words, it is mandatory to impound a document
produced before him or which comes before him in the performance
of his functions.

So at the stage of impounding the document, the trial Court, in my considered
view, need not probe into the fact whether the said document will pass the
test of relevancy to be admissible in evidence. That aspect can be relegated to
a later stage.  It must also be noted that the mortgage deed is an unregistered
one.  Hence, whether the said document can be admitted in evidence for
collateral purpose under Section 49 of Indian Registration Act can also be
looked into at the time when the document is actually tendered in evidence on
behalf of defendant. At that stage the defendant has to convince to the
satisfaction of the trial Court that property covered by plaint schedule and
mortgage deed is in fact one and the same and it is relevant for the purpose of
proving his case and further, the same is admissible in evidence for collateral
purpose. Hence, what is pertinent at this stage is only to impound the
document and collect the proper stamp duty and penalty under the relevant
provisions of Indian Stamp Act.  Therefore, impugned order is liable to be set
aside.
10)     In the result, this Civil Revision Petition is allowed and impugned
order dated 26.06.2015 in I.A.No.125 of 2015 in O.S.No.43 of 2014 passed
by the Principal Junior Civil Judge, Sompeta is set aside and the trial Court is
directed to impound the mortgage deed dated 31.03.2003 and collect the
stamp duty and penalty under the relevant provisions of Indian Stamp Act.
No costs.
_________________________  
U. DURGA PRASAD RAO, J    
Date: 03.09.2015