- 1 - HC-KAR CNR: KAHC010389432022 NC: 2026:KHC:47863 WP No. 17250 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF SEPTEMBER, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO. 17250 OF 2022 (GM-CPC) BETWEEN: 1. MAIMUNNISA, W/O LATE FRUIT MERCHANT PYAREIJAN, AGED ABOUT 61 YEARS, 2. RESHMA, W/O SAFEER AHAMED, AGED ABOUT 34 YEARS, 3. NOORI, W/O JABEEULLA, AGED ABOUT 31 YEARS, 4. SAHARA, W/O JAMEEL AHAMMAD, AGED ABOUT 29 YEARS, 5. SALMAN, S/O FRUIT MERCHANT PYAREIJAN, AGED ABOUT 25 YEARS, ALL ARE R/AT ARASIKERE TOWN, SHANUBHOGARA STREET, HASSAN DISTRICT – 573 201. …PETITIONERS (BY SRI. SATHISHA D J., ADVOCATE) Digitally signed by ANNAPURNA G Location: High Court of Karnataka - 2 - HC-KAR CNR: KAHC010389432022 NC: 2026:KHC:47863 WP No. 17250 of 2022 AND: G.A.SHAMSHUNDDIN, S/O G. AHAMMAD KAKA, AGED ABOUT 50 YEARS, R/AT YASMI MANJIL, BACHPE, K.P.NAGARA POST, MANGALORE – 574 147. …RESPONDENT (RESPONDENT SERVED) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ON CALCULATION OF STAMP DUTY AND PENALTY AT ANNX-D DATED 17.06.2021 PASSED IN OS 33/2015, PENDING BEFORE THE 2ND ADDITIONAL CIVIL JUDGE AND JMFC AT ARSIKERE AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER This writ petition is filed challenging the order dated 17.06.2021 passed in O.S.No.33/2015 by the II Additional Civil Judge and JMFC, Arsikere (hereinafter referred to as the 'trial Court' for short). - 3 - HC-KAR CNR: KAHC010389432022 NC: 2026:KHC:47863 WP No. 17250 of 2022 2. Heard Sri Sathisha D. J., learned counsel for the petitioners. Though the respondent is served with notice, there is no representation on his behalf. Perused the material available on record. 3. The petitioners filed a suit in O.S.No.33/2015 seeking a judgment and decree for specific performance of the contract. In the said proceedings, the petitioners produced an unregistered agreement of sale with possession dated 25.03.1993. The trial Court, under the impugned order dated 17.06.2021, directed the petitioners to pay the deficit duty and penalty of Rs.1,48,390/-, recording the reason that the petitioners are in possession of the premises. 4. A perusal of the agreement produced by the petitioners indicates that the petitioners, who were tenants under the respondent, were in possession of the premises prior to the agreement and continued to be in possession of the premises. Thereafter, an agreement of sale came to - 4 - HC-KAR CNR: KAHC010389432022 NC: 2026:KHC:47863 WP No. 17250 of 2022 be entered into between the petitioners and the respondent, which was sought to be enforced in the suit. 5. Taking note of the clause of the agreement, I am of the considered view that the trial Court has committed an error in directing the plaintiffs to pay duty and penalty by considering the fact that the petitioners are in possession of the premises, without appreciating the language employed in Article 5(e)(i) of the Karnataka Stamp Act, 1957 (hereinafter referred to as 'the Act' for short). 6. Article 5(e)(i) of the Act indicates that if, relating to sale of immovable property, in part performance of the contract, possession of the property is delivered or is agreed to be delivered before the execution of the conveyance, then the duty payable would be as per Article 20 of the Act. 7. In the case on hand, possession of the property was neither delivered to the petitioners under the - 5 - HC-KAR CNR: KAHC010389432022 NC: 2026:KHC:47863 WP No. 17250 of 2022 agreement nor was it agreed between the parties that possession would be delivered before the execution of the conveyance. In the case on hand, the agreement itself makes it clear that the petitioners were in possession prior to the agreement in question as tenants. Hence, Article 5(e)(i) of the Act would not apply. However, Article 5(e)(ii) of the Act would apply as the agreement of sale is on Rs.5/- which is deficit as per Article 5(e)(ii) of the Act. Hence, I proceed to pass the following: ORDER i) The writ petition is allowed. ii) The impugned order dated 17.06.2021 passed in O.S.No.33/2015 by the II Additional Civil Judge and JMFC, Arsikere, is hereby set aside. iii) The trial Court is directed to recalculate the duty and penalty payable on the instrument in question as per Article - 6 - HC-KAR CNR: KAHC010389432022 NC: 2026:KHC:47863 WP No. 17250 of 2022 5(e)(ii) of the Act and on such calculation, plaintiffs shall make the payment. No order as to costs. Sd/- (VIJAYKUMAR A. PATIL) JUDGE SHS List No.: 1 Sl No.: 24