KASTURI vs BASAVARAJ
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC-K:11063
WP No. 201674 of 2026
CNR: KAHC030047482026
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
DATED THIS THE 7 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT PETITION NO. 201674 OF 2026 (GM-CPC)
BETWEEN:
KASTURI W/O HANAMANT HADALASANG,
AGE: 55 YEARS, OCC: HH WORK,
R/O. HALAGANI, TQ. BABALESHWAR, DIST.
VIJAYAPURA,
BY HER SPA HOLDER,
MALLAPPA S/O HANAMANT HADALASANG,
AGE: 34 YEARS, OCC: AGRI,
R/O. HALAGANI, TQ. BABALESHWAR,
DIST. VIJAYAPURA.
…PETITIONER
(BY SRI. SHIVANAND PATIL, ADVOCATE)
AND:
1. BASAVARAJ S/O RAMAPPA CHITAGI,
AGE: 50 YEARS, OCC: AGRI,
R/O. HALAGANI, TQ. BABALESHWAR,
DIST. VIJAYAPURA- 586101.
2. GODAWWA @ BOURAWWA
W/O PRABHU ALGUR,
MAIDEN NAME GODAWWA @ BOURAWWA
D/O RAMAPPA CHITAGI,
AGE: 52 YEARS, OCC: AGRI,
R/O. TODALABAGI, TQ. JAMAKHANDI,
DIST. BAGALKOT- 587101.
Digitally signed by
VARSHA N
RASALKAR
Location: HIGH
COURT OF
KARNATAKA
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3. SHARADA @ SHARADABAI @ SHARAWWA
W/O HANAMANT @ RAMAPPA IBRAHIMPUR
@ CHITAGI,
AGE: 68 YEARS, OCC: AGRI,
R/O. HALAGANI, TQ. BABALESHWAR,
DIST. VIJAYAPURA- 586101.
4. MAHESH S/O KASTURI CHITAGI,
AGE: 35 YEARS, OCC: AGRI,
R/O. HALAGANI, TQ. BABALESHWAR,
DIST. VIJAYAPURA- 586101.
…RESPONDENTS
(BY SRI. S.S. MAMADAPUR, ADVOCATE FOR R1;
V/O DTD. 22.04.2026 NOTICE TO R2 TO R4 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO
1) ISSUE A WRIT OF CERTIORARI OR ANY OTHER ORDER OF
THE LIKE NATURE AND QUASH THE IMPUGNED ORDER DATED
17.02.2026 ON IA NO.12 IN OS NO.782/2016 PENDING ON
RD
THE FILE OF 3 ADDL. CIVIL JUDGE AND JMFC VIJAYAPURA
AS PER ANNEXURE-G TO THE WRIT PETITION AND
CONSEQUENTLY REJECT THE PRAYER OF THE RESPONDENT/
PLAINTIFF.
2) ANY OTHER RELIEF TO WHICH THE PETITIONER IS
ENTITLED TO MAY BE GRANTED.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI
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ORAL ORDER
1. The petitioner aggrieved by the order dated
17.02.2026 passed on I.A. No.12 in O.S. No.782 of
2016 by the learned III Additional Civil Judge and
JMFC, Vijayapura, is before this Court.
2. For convenience, the parties are referred to as per
their ranking before the Trial Court: the petitioner is
defendant No.4; respondent No.1 is the plaintiff; and
respondent Nos.2 to 4 are defendant Nos.1 to 3.
3. Brief facts leading rise to the filing of this petition are
as follows:
4. The plaintiff filed an application under Order XIII
Rule 3 of the Code of Civil Procedure, 1908 (for
short, ‘ the CPC ’) praying to reject, remove or delete
Exhibit D5, which has been marked in evidence by
the Court on the ground that the document marked
is inadmissible in evidence.
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5. The said application was opposed by defendant No.4
by filing objections contending that the said
document has been marked as Exhibit D5 without
any objection from the plaintiff at the relevant time
and as such, prayed to reject the application.
6. The Trial Court, after hearing the learned counsel for
the parties, allowed the application vide order dated
17.02.2026 and rejected Exhibit D5 as inadmissible
and expunged Exhibit D5 from the records.
7. Defendant No.4, aggrieved by the same, filed this
writ petition.
8. Heard the arguments of the learned counsel for
defendant No.4 and learned counsel for the plaintiff.
9. Learned counsel for defendant No.4 submits that
Exhibit D5 is marked without judicial determination.
The trial Court could have passed an order regarding
judicial determination for marking the document. The
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Trial Court without any judicial determination
rejected Exhibit D5 as inadmissible and without
deciding on the objections raised, expunged Exhibit
D5 from the records. Hence, he submits that the
procedure adopted by the trial Court in passing the
impugned order is arbitrary and erroneous. Hence,
on these grounds, he prays to allow the writ petition.
10. Per contra, learned counsel for the plaintiff supports
the impugned order and submits that Exhibit D5 is
insufficiently stamped and as such, it is inadmissible
in evidence. Hence, prays to dismiss the writ
petition.
11. Perused the records and considered the submissions
of the learned counsel for the parties.
12. It is an undisputed fact that the defendants have
lead the evidence and marked a document as Exhibit
D5. Though, no objection was raised by the plaintiff
at the time of marking the said document, it is the
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duty of the Presiding Officer of the Court to receive
an instrument in evidence and is bound to give effect
to the mandate of Sections 33 and 34 of the Stamp
Act and retains the authority to impound an
instrument even in the absence of any objection from
any party to the proceedings.
13. The said view is supported by the judgment of the
Hon'ble Apex Court in the case of G.M. Shahul
1
Hameed v. Jayanthi R. Hegde , wherein the
Hon'ble Apex Court held in paragraphs 21 to 23 as
follows:
“21. The Presiding Officer of a court
being authorised in law to receive an
instrument in evidence, is bound to give
effect to the mandate of Sections 33 and
34 and retains the authority to impound
an instrument even in the absence of any
objection from any party to the
proceedings. Such an absence of any
objection would not clothe the Presiding
1
(2024) 7 SCC 719
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Officer of the court with power to
mechanically admit a document that is
tendered for admission in evidence. The
same limitation would apply even in case
of an objection regarding admissibility of
an instrument, owing to its insufficient
stamping, being raised before a court of
law. Irrespective of whether objection is
raised or not, the question of
admissibility has to be decided according
to law.
22. The Presiding Officer of a court when
confronted with the question of admitting
an instrument chargeable with duty but
which is either not stamped or is
insufficiently stamped ought to judicially
determine it. Application of judicial mind
is a sine qua non having regard to the
express language of Sections 33 and 34
and interpretation of pari materia
provisions in the Stamp Act, 1899 (“the
1899 Act” hereafter) by this Court.
However, once a decision on the
objection is rendered — be it right or
wrong — Section 35 would kick in to bar
any question being raised as to
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admissibility of the instrument on the
ground that it is not duly stamped at any
stage of the proceedings and the party
aggrieved by alleged improper admission
has to work out its remedy as provided
by Section 58 of the 1957 Act.
23. Profitable reference may be made to
the decision of this Court in Javer Chand
v. Pukhraj Surana [1961 SCC OnLine SC
22 : (1962) 2 SCR 333 : AIR 1961 SC
1655] . There, provisions of Section 36 of
the 1899 Act, which is pari materia
Section 35 of the 1957 Act, came up for
consideration. A Bench of four Hon'ble
Judges of this Court held that when a
document's admissibility is questioned
due to improper stamping, it must be
decided immediately when presented as
evidence. The relevant paragraph is
(SCC OnLine SC, para
extracted hereunder :
4)
“ 4 . … Where a question as to the
admissibility of a document is raised
on the ground that it has not been
stamped, or has not been properly
stamped, it has to be decided then
and there when the document is
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tendered in evidence. Once the court,
rightly or wrongly, decides to admit
the document in evidence, so far as
the parties are concerned, the matter
is closed . Section 35 is in the nature of
a penal provision and has far-reaching
effects. Parties to a litigation, where
such a controversy is raised, have to
be circumspect and the party
challenging the admissibility of the
document has to be alert to see that
the document is not admitted in
evidence by the court. The court has
to judicially determine the matter as
soon as the document is tendered in
evidence and before it is marked as an
exhibit in the case . The record in this
case discloses the fact that the hundis
were marked as Exts. P-1 and P-2 and
bore the endorsement “admitted in
evidence” under the signature of the
court. It is not, therefore, one of those
cases where a document has been
inadvertently admitted, without the
court applying its mind to the question
of its admissibility. Once a document
has been marked as an exhibit in the
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case and the trial has proceeded all
along on the footing that the
document was an exhibit in the case
and has been used by the parties in
examination and cross-examination of
their witnesses, Section 36 of the
Stamp Act comes into operation. Once
a document has been admitted in
evidence, as aforesaid, it is not open
either to the trial court itself or to a
court of appeal or revision to go
behind that order. Such an order is
not one of those judicial orders which
are liable to be reviewed or revised by
the same court or a court of superior
jurisdiction .”
(emphasis in original and supplied)
14. Thus, when the plaintiff has raised an objection
regarding the admissibility of the document on the
ground that it has not been stamped, it is the duty of
the trial Court to judicially determine as to whether
the document is admissible and whether it is properly
stamped or not.
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15. Admittedly, the trial Court without considering the
said aspects has committed an error in marking the
said document and also later on, expunging the said
document.
16. The trial Court, by exercising power under Sections
33 and 34 of the Stamp Act, could consider regarding
admissibility of a document and regarding the
payment of duty and penalty, as such, the order
passed by the trial Court is contrary to the exposition
laid down by the Hon'ble Apex Court in the case of
G.M.Shahul Hameed (supra).
17. Further, once a document is admitted in evidence
upon a judicial determination, Section 35 of the
Karnataka Stamp Act, 1957 gets attracted, otherwise
it is always open for the Court to exercise its
inherent powers to achieve the justice and prevent
abuse of its process.
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18. It is pertinent to note that though the Trial Court was
justified in recalling the marking of document,
however, as the said document is marked without
judicial determination, on this score alone, the
impugned order is liable to be set aside.
19. Hence, in view of the above discussion, the
impugned order is liable to be set aside.
20. Accordingly, I proceed to pass the following:
ORDER
(i) The writ petition is allowed ;
(ii) The impugned Order dated
17.02.2026 passed on I.A. No.12
in O.S. No.782 of 2016 by the
learned III Additional Civil Judge
and JMFC, Vijayapura is set
aside .
(iii) The Trial Court is directed to
decide regarding admissibility of
the instrument, on the ground
whether it is duly stamped or not,
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and thereafter pass an
appropriate order, in accordance
with law.
Sd/-
(ASHOK S. KINAGI)
JUDGE
RK
List No.: 2 Sl No.: 31
Ct:pk