Saidali Haji v. Hassan Yaser Arafth

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 1[ST] DAY OF OCTOBER 2021 / 9TH ASWINA, 1943** **OP (RC) NO. 205 OF 2017** **AGAINST THE ORDER DATED 18.11.2017 IN I.A.NO.1834 OF 2017 IN RCP 49 OF 2014 OF MUNSIFF COURT, PARAPPANANGADI, MALAPPURAM** ## **PETITIONER/PETITIONER:** **SAIDALI HAJI, AGED 61 YEARS S/O. ABDULKHADER HAJI,NALAKATH HOUSE, VADAKKUMBRAM AMSOM DESOM,TIRUR TALUK. BY ADVS. SRI.SAJU.S.A SRI.ASHWIN SATHYANATH SMT.M.R.MINI SMT.MEENA.A. SRI.VINOD RAVINDRANATH SRI.VINAY MATHEW JOSEPH** ## **RESPONDENT/RESPONDENT:** **HASSAN YASER ARAFTH S/O. HASSAINAR, KUZHAMPURALATH HOUSE,KATTIPPARUTHI AMSOM, VALANCHERI DESOM,P.O. VALANCHERI, TIRUR TALUK - 676 552. BY ADVS. SRI.JAMSHEED HAFIZ SMT.T.S.SREEKUTTY** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(RC) No.205 OF 2017 2 ## **JUDGMENT** ## Anil K. Narendran, J. The petitioner has filed R.C.P.No.49 of 2014 on the file of the Rent Control Court (Munsiff), Parappanangadi, under Section 5(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, seeking fixation of fair rent of the petition scheduled building occupied by the respondent herein. The petitioner has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P6 order dated 18.11.2017 of the Rent Control Court, Parapppanangadi in I.A.No.1834 of 2017 in R.C.P.No.49 of 2014. I.A.No.1834 of 2017 (Ext.P5) is an application filed by the landlord seeking an order to receive certain documents in evidence. Along with that application the landlord has also filed I.A.No.1832 of 2017 (Ext.P3) seeking an order to re-open the evidence in R.C.P.No.49 of 2014 and I.A.No.1833 of 2017 (Ext.P4) seeking an order to recall PW1. 2. The petitioner has also sought for an order directing the Rent Control Court to allow Exts.P3, P4 and P5 applications and also to stay all further proceedings in R.C.P.No.49 of 2014, pending disposal of this original petition. 3. On 07.12.2017, when this original petition came up O.P.(RC) No.205 OF 2017 3 for admission, this Court admitted the matter and issued notice by speed post to the respondent. This Court granted an interim stay of all further proceedings in R.C.P.No.49 of 2014 on the file of the Rent Control Court, Parappanangadi, for a period of two weeks. The said interim order was not extended thereafter. 4. Heard the learned counsel for the petitioner-landlord and also the learned counsel for the respondent-tenant. 5. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P6 order dated 18.11.2017 of the Rent Control Court, Parappanangadi, in I.A. No.1834 of 2017 in R.C.P.No.49 of 2014 invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 6. Section 33 of the Kerala Stamp Act deals with examination and impounding of instruments. As per sub-section (1) of Section 33, 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. O.P.(RC) No.205 OF 2017 4 7. Section 34 of the Act provides that, instrument not duly stamped inadmissible in evidence, etc. As per Section 34, 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. 8. Section 37 of the Act provides how instruments impounded are dealt with. As per sub-section (1) of Section 37, when the person impounding an instrument under Section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence or when he is a registering officer to register such instrument upon payment of a penalty as provided by Section 34 or of duty as provided by Section 36, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector or to such person as he may appoint in this behalf. As per sub-section (2) of Section 37, in every other case, the person so impounding an instrument shall send it in original to the Collector. 9. Section 39 of the Act deals with Collector's power to O.P.(RC) No.205 OF 2017 5 ## stamp instruments impounded. Section 39 of the Act reads thus; “39. Collector's power to stamp instruments impounded.(1) When the Collector impounds any instrument under Section 33, or receives any instrument sent to him under sub-section (2) of Section 33A or sub-section (2) of Section 37, not being an instrument chargeable with a duty of twenty paise or less, he shall adopt the following procedure:- - (a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped or that it is not so chargeable, as the case may be; - (b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of ten rupees; or if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof whether such amount exceeds or falls short of ten rupees: Provided that, when such instrument has been impounded only because it has been written in contravention of Section 13 or Section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section. - (2) Every certificate under clause (a) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein. - (3) Where an instrument has been sent to the Collector O.P.(RC) No.205 OF 2017 6 under sub-section (2) of Section 37, the Collector shall, when he has dealt with it as provided by this Section, return it to the impounding officer. 10. Section 41 of the Act deals with endorsement of instruments on which duty has been paid under Sections 34, 39 or 40. Section 41 reads thus; “41. Endorsement of instruments on which duty has been paid under Sections 34, 39 or 40.- (1) When the duty and penalty, if any, leviable in respect of any instrument have been paid under Section 34, Section 39 or Section 40, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof and the name and residence of the person paying them. (2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct: Provided that-- - (a) no instrument which has been admitted in evidence upon payment of duty and a penalty under Section 34 shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate; - (b) nothing in this section shall affect Order XIII, Rule 9 O.P.(RC) No.205 OF 2017 7 of the First Schedule to the Code of Civil Procedure, 1908.” ## 11. In **Ramachandran K.P. v. District Registrar** **(General) and others [2019 (3) KHC 136]** a Division Bench of this Court held that, the Statutory mandate under Section 33 of the Kerala Stamp Act is that, when any instrument chargeable with duty is produced before the person having by law or consent of parties authority to receive evidence, or every person in charge of a public office, except an Officer of Police, or when any such instrument is produced or comes in performance of his functions, he shall impound the same, if it appears to him that such instrument is not duly stamped. Therefore, it is obligatory on the said officer to impound the insufficiently stamped instrument, when such an instrument is produced before him or it comes before him in the performance of his function. The wording “is produced or comes in performance of his functions, shall, if it appears to him that such instrument is not duly stamped” are very significant and explicitly makes the above view very clear. The expression 'shall' conveys a command and thereby makes the provision mandatory as well as obligatory. Therefore, when an insufficiently stamped instrument comes to the notice of the court/empowered person, O.P.(RC) No.205 OF 2017 8 it is incumbent upon the court/ empowered person under Section 33 of the Act to impound such instrument, irrespective of the purpose for which it was produced before the court or the party who produced it before them. Mere production or casual appearance of insufficiently stamped instrument before the court/empowered person, in the performance of functions is sufficient for invoking the power of impounding, envisaged under Section 33 of the Act. We make it clear that the prayer for receiving or admitting the instrument is not required for invoking the power to impound the same under Section 33 of the Act. The expression 'impound' only means taking possession of the document for being held in custody only, in accordance with law. Therefore, it is obligatory on the court/empowered person to take possession of the insufficiently stamped instrument. Section 33 empowers the court/empowered person to take possession of the insufficiently stamped instrument only, and the court/ empowered person has no power to impose penalty under Section 33, when the document is produced before the court/ empowered person and is not sought to be admitted in evidence. Accordingly, it can be safely concluded that the composite order, impounding the instrument and imposing penalty, when the insufficiently stamped instrument is O.P.(RC) No.205 OF 2017 9 produced before the court/empowered person but is not sought to be admitted in evidence, is legally unsustainable as the court/empowered person has no power to impose penalty under Section 33 of the Act, when the instrument is not sought to be admitted in evidence. It further follows that, the order impounding the insufficiently stamped instrument alone is legally sustainable and the court is bound to pass such an order impounding the instrument only, when the instrument is not sought to be admitted in evidence. It is well discernible on a meticulous reading of Sections 33, 34 and 37 of the Act that the power to impound and impose penalty are different and distinct and conferred to the court/empowered person on different circumstances and context. It is well discernible from Section 34 of the Act that no instrument chargeable with duty shall be admitted in evidence or shall be acted upon unless the instrument is duly stamped and such insufficiently stamped instrument be admitted in evidence on payment of deficient portion and penalty at 10 times of such portion. Thus, penalty can be imposed only if the instrument is sought to be admitted in evidence and no penalty can be imposed if the document is not tendered to be admitted in evidence. Sub-section (1) and (2) of Section 37 of the Act prescribes as to how the impounded O.P.(RC) No.205 OF 2017 10 instrument shall be dealt with. The procedure to be adopted is prescribed under sub-section (1) and (2) of Section 37 of the Act. As per sub-section (1) of Section 37, if the instrument is admitted in evidence and penalty is imposed, the Registering Officer shall, under Section 34, send an authenticated copy of such instrument to the District Collector, together with the certificate in writing, stating the amount of duty levied and shall send such amount to the District Collector or to such person appointed on that behalf. As per sub-section (2) of Section 37, in every other case, the person so impounding an instrument shall send it in original to the District Collector. It follows that the instrument, which was impounded, but not admitted in evidence, would fall under sub-section (2) of Section 37 of the Act. In other words, the instrument, which was impounded under Section 33, but not admitted in evidence, shall be sent to the District Collector, as prescribed under sub-section (2) of Section 37, for imposing penalty under clause (b) of sub-section (1) of Section 39 of the Act. 12. In the instant case, in I.A.No.1834 of 2017 filed by the landlord seeking an order to receive additional documents, the Rent Control Court passed Ext.P6 order impounding the rent agreement dated 15.04.2016 on the ground that it is O.P.(RC) No.205 OF 2017 11 insufficiently stamped. The Rent Control Court ordered that if the parties want to mark the documents they shall pay the deficit amount and penalty of Rs.2,11,200/-, failing which the document will be sent to the District Collector under Section 37(2) of the Kerala Stamp Act. Along with I.A.No.1834 of 2017, the landlord has filed I.A.No.1832 of 2017 seeking an order to re-open the evidence in R.C.P.No.49 of 2014 and also I.A.No.1833 of 2014 seeking an order to recall PW1. During the course of arguments, the learned counsel on both sides would submit that the Rent Control Court is yet to pass orders on I.A.Nos.1832 of 2017 and 1833 of 2017. 13. Having considered the submissions made by the learned counsel on both sides, this Court finds that I.A.No.1834 of 2017 in R.C.P.No.49 of 2014 requires reconsideration at the hands of the Rent Control Court in the light of the law laid down by the Division Bench of this Court in **Ramachandran K.P. [2019 (3) KHC 136]** . In such circumstances, this original petition is disposed of by setting aside Ext.P6 order dated 18.11.2017 of the Rent Control Court, Parappanangadi, in I.A.No.1834 of 2017 in R.C.P.No.49 of 2014 and directing the Rent Control Court to reconsider I.A.No.1834 of 2017 and pass appropriate orders O.P.(RC) No.205 OF 2017 **==> picture [13 x 8] intentionally omitted <==** thereon, taking note of the statutory provisions referred to hereinbefore and also the law laid down by the Division Bench of this Court in **Ramachandran** , as expeditiously as possible, at any rate, within a period of one month from the date of production of a certified copy of this judgment. The Rent Control Court shall also dispose of I.A.Nos.1833 of 2017 and 1832 of 2017 in R.C.P.No.49 of 2014 within the aforesaid time limit. Sd/- ## **ANIL K. NARENDRAN JUDGE** Sd/- **K. BABU JUDGE** SSK/01/10 O.P.(RC) No.205 OF 2017 13 ## **APPENDIX OF OP (RC) 205/2017** ## **PETITIONER'S EXHIBITS** |**EXHIBIT P1.**|**TRUE COPY OF THE RENT CONTROL PETITION**| |---|---| ||**DATED 11.11.2014 IN R.C.P.49/2014**| ||**BEFORE THE RENT CONTROL COURT,**| ||**PARAPPANANADI**| |**EXHIBIT P2.**|**TRUE COPY OF THE COUNTER DATED**| ||**03.06.2015 IN RCP 49/14 FILED BY THE**| ||**RESPONDENT BEFORE THE RENT CONTROL**| ||**COURT, PARAPPANANADI**| |**EXHIBIT P3.**|**TRUE COPY OF THE APPLICATION DATED**| ||**08.11.2017 IN I.A.1832/2017 IN RCP**| ||**49/14 ON THE FILE OF THE RENT CONTROL**| ||**COURT, PARAPPANANADI**| |**EXHIBIT P4.**|**TRUE COPY OF THE APPLICATION DATED**| ||**09.11.2017 IN I.A.1833/2017 IN RCP**| ||**49/14 ON THE FILE OF THE RENT CONTROL**| ||**COURT, PARAPPANANADI**| |**EXHIBIT P5.**|**TRUE COPY OF THE LIST OF DOCUMENTS DT.**| ||**09.11.2017 IN I.A.1834/2017 IN RCP**| ||**49/14 ON THE FILE OF THE RENT CONTROL**| ||**COURT, PARAPPANANADI**| |**EXHIBIT P6.**|**TRUE COPY OF THE ORDER DATED 18.11.2017**| ||**IN RCP 49/2014 OF THE RENT CONTROL**| ||**COURT, PARAPPANANGADI**|