Full Judgment
1. The petition is admitted and with the consent of the parties, it is finally heard.
2. The petitioner-plaintiff being aggrieved by the order dated 25-1-2008 passed by learned Civil Judge, Class I, Bina in Civil Suit No. 197-A/2006 is before this Court with a submission that the order passed by the Court below shows absolute non-application of mind because on one side it is requiring the plaintiff to pay duty and penalty on the document treating it to be an agreement and at the same time it is holding that the document is a complete sale.
3. It is submitted by the learned Counsel for the petitioner that if the document is an agreement for sale with delivery of possession then the question of stamp duty only would arise but if its held that the document is a complete sale and is unregistered then the document would be inadmissible except for collateral purpose. It is submitted that the order passed by the Court below deserves to be set aside.
4. Shri Pranay Verma, learned Counsel for the respondent Nos. 1 and 2 on the other hand submitted that from a perusal of the document in dispute it would clearly appear that it is a complete sale because it assigns right, title and interest in presentee in favour of the plaintiff. However, it is admitted by him that if the document is taken to be a sale deed the Court below could not direct the plaintiff to deposit ten times penalty for making document admissible in the Indian Stamp Act.
5. Shri Jain, learned Counsel for the State, however, submitted that they are formal parties.
6. From the order dated 25-1-2008 it would clearly appear that at one point of time the Court had observed that the document in dispute is a complete sale but at the same time the Court has observed that in accordance with Schedule I (a) appended to the Stamp Act (as amended in M.P.) 7.5% stamp duty was to be paid and as the plaintiff has not paid that much of the stamp duty he would be obliged to pay balance of the stamp duty.
6. In our opinion, if a document is an agreement for sale and is not duly stamped then a Court or an officer who has to receive the document in evidence would have jurisdiction to decide the question of stamp duty payable and thereafter, may require the party producing the document to pay the penalty that too at ten times. If the document is a complete sale and it is in relation to tangible immovable property worth more than Rs. 100/- then a document unless it is registered would not be admissible in evidence irrespective of the tact that it is on proper stamp or not.
7. In the present matter, it appears that the Court got confused regarding admissibility of the document in different provisions of law. The order passed by the Court below amounts to non-exercise of jurisdiction vested in the Court and the order also suffers with material irregularity which has vitiated the order, the irregularity is floating on the surface of the records. The order is set aside.
8. The learned Trial Court is hereby directed to reconsider the contents of the document and should first decide whether it is an agreement to sell or it is a sale deed. Once the Court decides the nature of the document then only the Court shall pass appropriate order in relation to the admissibility of the document or payment of the stamp duty.
9. The petition is allowed. There shall be no orders as to costs.