1 Reserved on : 27.06.2025 Pronounced on : 08.07.2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.12338 OF 2025 (GM – CPC) BETWEEN: SMT. GEETHA RAGINI KUMAR AGED ABOUT 44 YEARS, W/O. RANJAN AJITH KUMAR, R/O. SAMPIGEKATTE ROAD, MUDIGERE TALUK – 577 132. CHIKKAMANGALURU DISTRICT. M: 9448132096. ... PETITIONER (BY SRI CHIDAMBARA G.S., ADVOCATE) AND: SRI AKBAR PASHA AGED ABOUT 59 YEARS, S/O LATE ABDUL MUTHALIB, R/O HALEKOTE VILLAGE, BIDARAHALLI POST, MUDIGERE TALUK – 577 132, 2 CHIKKAMANGALURU DISTRICT. ... RESPONDENT (BY SRI GIRISH B.BALADARE, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 19-09-2024 AS PER ANNEXURE-F MARKING UNREGISTERED DOCUMENT AS EX.P10 AND THE ORDER DATED 16.01.2025 ON I.A NO.XIV VIDE ANNEXURE-K BOTH PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC AT MUDIGERE IN O.S NO.6/2019. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 27-06-2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioner/defendant is before this Court feeling aggrieved by an order dated 16-01-2025 passed by the Senior Civil Judge and JMFC, Mudigere in O.S.No.6 of 2019. 3 2. Heard Sri G.S.Chidambara, learned counsel appearing for the petitioner and Sri Girish B.Baladare, learned counsel appearing for respondent. 3. Facts, in brief, germane are as follows: - The respondent/plaintiff institutes O.S.No.6 of 2019 seeking the relief of declaration, possession and permanent injunction against the petitioner/defendant in respect of suit schedule property. The petitioner/defendant, after issuance of notice, files her written statement. The issue in the lis does not relate to the claim or the defence before the concerned Court. The respondent seeks to mark a document before the concerned Court as Ex.P10 in evidence of PW-1. This is an unregistered consent agreement, which was objected to, by the petitioner and notwithstanding the objection, the document is permitted to be marked. The respondent then, on the strength of the same, files an application for appointment of Court Commissioner. The concerned Court allows the application. Aggrieved, the petitioner/defendant is before this Court seeking the prayer of quashment of the order dated 4 16-01-2025 permitting appointment of Court Commissioner and allowing unregistered documents/consent agreement to be marked as Ex.P10. 4. The learned counsel appearing for the petitioner would submit that the document, which is unregistered, ought not to have been permitted to be marked and on the strength of which could not have been appointed a Court Commissioner. He would seek to place reliance upon the judgment of the Apex Court in the case of YELLAPU UMA MAHESWARI v. BUDDHA JAGADHEESWARARAO reported in (2015) 16 SCC 787. 5. Per contra, the learned counsel appearing for the respondent submits that the document has been marked for collateral purpose and, therefore, it was permissible for the Court to use the said document for collateral purposes. 6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 5 7. The issue lies in a narrow compass viz., whether the consent agreement could be marked as Ex.P10 in the proceedings. It is the case of the petitioner/defendant that it could not have been done, as it was an unregistered consent agreement. In identical circumstances, a coordinate Bench of this Court in the case of RAMAPPA v. NEELAPPA1, has held as follows: “…. …. …. That the petitioners have filed a suit in O.S.No.123/2016 for the relief of declaration and permanent injunction on the basis of the partition deed, Palu Pari Khath dated 6.10.1997. The respondents filed written statement denying the averments made in the claim. When the case was posted for the petitioners’ evidence, the petitioners tendered unregistered partition deed styled as palu vibhaga/palu parikath. But the trial Court refused to mark the document on the ground that the said document is an unregistered partition deed and not admissible in evidence and the same cannot be taken in evidence. Aggrieved by the same, the petitioners have filed this writ petition. 3. Heard the learned counsel for the petitioners. There is no representation on behalf of respondent No.1. 4. Learned counsel for the petitioners submits that the document tendered by the petitioners is an unregistered partition deed. However, the petitioners are ready to pay the duty and penalty. Hence, he prays that the writ petition be allowed. 5. Heard and perused the records. 1 Writ Petition No.58027 of 2018 decided on 28-07-2021 6 6. It is not in dispute that the petitioners have filed a suit for declaration and permanent injunction based on the unregistered partition deed dated 6.10.1997. Since, the said document is an unregistered document, the trial Court has recorded a finding that the said document is inadmissible in evidence. However, the Trial Court by invoking Section 33 of the Karnataka Stamp Act, 1957 ought to have impounded the document and collected the duty and penalty and thereafter it could have considered the said instrument in the evidence of the petitioners as per the procedure contemplated under Sections 36 and 37 of the of the Karnataka Stamp Act, 1957. The trial Court has violated the procedure and has passed the impugned order which is arbitrary and capricious. Therefore, the order passed by the trial Court rejecting the said document for consideration is illegal and not sustainable in law. 7. Accordingly, the writ petition is allowed. The impugned order passed by the Trial Court dated 11.10.2018 passed in O.S.No.123/2016 is hereby set aside. However, the trial Court can impound the document and collect duty and penalty as per the provisions of the Karnataka Stamp Act, 1957 and proceed to record the evidence in accordance with law.” (Emphasis supplied) The coordinate Bench holds interpreting Sections 36 and 37 of the Karnataka Stamp Act, 1957 (‘the Act’ for short), that the instrument in evidence should have been impounded and duty ought to have been collected by the concerned Court in terms of Section 33 of the Act and reserving such liberty, holds that it was 7 inadmissible in evidence. I am in respectful agreement with what the coordinate Bench has held. 8. For the aforesaid reasons, I pass the following: O R D E R (i) Writ Petition is allowed. (ii) The order dated 16-01-2025 passed by the Senior Civil Judge and JMFC, Mudigere in O.S.No.6 of 2019 stands quashed. (iii) The concerned Court shall now impound the document, impose stamp duty and thereafter consider the instrument for marking, as also consider/reconsider the application filed by the respondent seeking appointment of Court Commissioner. Sd/- (M.NAGAPRASANNA) JUDGE Bkp/CT:MJ