Calcutta High Court (Appellete Side)
For The vs S.K. Shaw And on 1 March, 2012
Author: Dipankar Datta
Bench: Dipankar Datta
1
01.03.2012 C.O. 3794 of 2011
Mr. Pratik Prakash Banerjee
Ms. Debamitra Adhikary
........ for the petitioners.
Mr. Saptansu Basu
Ms. Manju Agarwal
Mr. Joyjit Ganguly
........ for the opposite parties.
1.This revisional application is directed against order dated September 19, 2011 passed by the learned Judge in seisin of a suit instituted by the petitioners. The order rejected an application under Section 151, Civil Procedure Code filed by them seeking correction of recording of submission made by learned counsel on their behalf in an earlier order dated December 8, 2010.
2. In order to decide the correctness of the order impugned, it would be necessary to note a few facts. The petitioners' sued the opposite parties seeking specific performance of an oral contract, evidenced by the conduct of the parties and also in a writing dated June 4, 2004 which recorded it, being a memorandum of understanding (hereafter the 2 MOU). The list of exhibits, bearing the signature of the learned Judge of the trial Court dated February 15, 2006, records that the MOU is one of several documents admitted in evidence for the petitioners and marked exhibit 2. The date of admission is endorsed as February 15, 2006. Other documents admitted in evidence on February 15, 2006 on behalf of the petitioners are also indicated therein, marked exhibits 1, 2(a), 3 and 3(a). However, the order passed on February 15, 2006 by the learned Judge did not record that the MOU had been admitted in evidence upon being marked an exhibit. An order passed on December 8, 2010 by the learned Judge proceeded to record that learned counsel for the petitioners agreed to the MOU being impounded since it was inadequately stamped. It was such recording in the order dated December 8, 2010 that the petitioners urged the trial Court to rectify by filing the application, which has been rejected by the impugned order. The learned Judge upon perusal of the records arrived at a finding that the MOU was never marked as an exhibit and that the same being inadequately stamped was liable to 3 be impounded before it could be received in evidence in support of the claim of the petitioners.
3. Mr. Banerjee, learned advocate appearing for the petitioners, contended that the learned Judge of the trial Court was called upon to decide whether or not the submission as recorded to have been made by learned counsel for the petitioners in the order dated December 8, 2010 had, in fact, been made or not. The learned Judge did not decide that question and thus failed to exercise jurisdiction vested in him by law.
4. It was further contended that the learned Judge failed to determine an essential jurisdictional question on the basis of which the MOU was sought to be impounded. Mr. Banerjee referred to the depositions of the petitioners' witnesses to show that they were cross-examined on behalf of all the defendants on the MOU on the premise that the same had been admitted in evidence and once it had been admitted in evidence, though not marked exhibit for no fault of the petitioners, Section 36 of the Indian Stamp Act was attracted and failure of the learned Judge before whom the MOU was 4 produced could not have been called in question at any further stage of the suit on the specious ground that it was not duly stamped. The point that has been urged is that for a ministerial error on behalf of the officers of the Court, the petitioners ought not to be penalized on the principle of actus curiae neminem gravabit.
5. In support of his submission, Mr. Banerjee relied on the decisions of the Supreme Court reported in AIR 1951 SC 115 (Rai Brij Raj Krishna v. S.K. Shaw and Bros.), AIR 2007 SC 2571 (R.N. Jadi and Brothers v. Subhashchandra) and (2010) 2 SCC 432 (Abdul Razzak v. Mangesh Rajaram Wagle).
6. Mr. Basu, learned senior advocate and Ms. Manju Agarwal, learned advocate representing some of the opposite parties vehemently opposed the application. According to them, the learned Judge did not commit any illegality so as to warrant judicial interdiction under Article 227 of the Constitution. Referring to the depositions of the witnesses on behalf of the petitioners, they urged that the MOU was never admitted in evidence on being marked exhibit 2, as alleged by the 5 petitioners. It has been contended that the witnesses for the petitioners were cross-examined on the contents of the affidavits marked exhibit 2(a) wherein one would find reference of the MOU but that per se does not mean that questions were put to the witnesses on the MOU itself. Since the MOU was never admitted in evidence, they asserted that question of Section 36 of the Act being attracted did not and cannot arise. The decisions of the Supreme Court reported in AIR 1961 SC 1655 (Javerchand & ors. v. Pukhraj Surana) and AIR 1978 Supreme Court 1393 [Ram Rattan (Dead) by legal representatives v. Vajranglal and ors.] were relied on by them to counter the submissions of Mr. Banerjee. Reference was also made by them to the decisions of this Court reported in 2005(1) CLJ (Cal) 249 (Mujibar Rahman Mondal v. Md. Abdulla Molla & ors.) and 2008 (1) CLJ (Cal) 358 (Smt. Indrawati Tiwari v. Sheo alias Sew Saran Sharma & ors.). Based on the aforesaid submissions, they prayed for dismissal of the revisional application.
7. I have heard learned advocates for the parties, considered the decisions cited at the bar and 6 perused the records of the trial Court pertaining to the suit instituted by the petitioners.
8. Order 13 of the Code deals with production, impounding and return of documents. Rule 4 of Order 13, insofar as the same is relevant for a decision on this application, reads as follows:
"4. Endorsements on documents admitted in evidence.--(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:--
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted;
and the endorsement shall be signed or initialled by the Judge."
9. Although the MOU in original is part of the records of the trial Court, no endorsement of particulars as required in terms of Rule 4(1) (supra) appears thereon. Question of the endorsement being signed or initialed by the learned Judge, therefore, does not and cannot arise in the circumstances.
10. Section 36 of the Act provides that an instrument having been admitted in evidence, such admission shall not be called in question at any stage of the suit or proceeding on the ground that such 7 instrument has not been duly stamped, except as provided in Section 61 thereof. Section 61 of the Act carves out an exception but is not relevant for a decision here, for, no order has been passed by the trial Court recording that the MOU has been admitted in evidence.
11. Order dated December 8, 2010 passed by the learned Judge records as follows:
"Parties filed hazira. Today is fixed for further argument.
The ld. lawyers for both sides are present. During argument, the ld. lawyer for the plaintiff by filing a petition of adjournment submits that the plaintiff is willing to get the MOU impounded so that it can go in evidence & hence an opportunity may be given to the plaintiff for taking necessary step. Hd. both sides. Considered.
To 15/12/2010 for taking necessary step by the plaintiff for impounding of the MOU and necessary order".
12. The order dated September 19, 2011 passed by the learned Judge although records that "it is not the issue involved in the suit as to whether on 8.12.2010 the ld. lawyer for the pltff. really submitted before this court that the pltff. is willing to get the MOU impounded so that it can go in evidence or not", 8 immediately thereafter in the following paragraph it was observed by him as follows:
"Though I think that the order dated December 8, 2010, which was written by the P.O. was actually the reflection of the submission of the ld. lawyer for the pltff. what he made on that date, but again I like to reiterate that this trivial dispute as to whether the ld. lawyer for the pltff. really made such submission on that date or not, would not help the parties to this litigation to get any relief and as such I think that it is not good to quibble over this triffle issue with regard to the contents of the order dt. 8.12.2010."
(underlining for emphasis by me)
13. Mr. Banerjee has taken exception to the approach of the learned Judge by contending that he did not exercise jurisdiction vested in him by deciding as to whether it was at all submitted by learned counsel appearing for the petitioners on December 8, 2010 that he was willing to have the MOU impounded. The portion of the order extracted (supra) provides a complete answer to the point raised by the petitioners. The learned Judge who passed the order dated December 8, 2010 has passed the impugned order and, therefore, there can be no escape from the conclusion that a finding on a factual aspect has been arrived at to the affect that learned counsel for the petitioners had indeed expressed 9 willingness on their behalf to have the MOU impounded. One of the reasons for declining relief to the petitioners is that a revisional Court would not disturb findings of fact recorded by the trial Court, and that too on the basis of what transpired in open Court before the learned Judge himself.
15. The learned Judge was required to give his decision as to whether the learned counsel for the petitioners had, in fact, made the submission or not which was recorded in the order dated December 8, 2010. Having so decided, he ought not to have traveled beyond the four corners of the application under Section 151 of the Code that was under
consideration by making certain observations, which were not at all germane.
14. Since Mr. Banerjee has argued that the MOU cannot be impounded at this stage after it was admitted in evidence, I consider it necessary to deal with the same. It is true that the MOU has been shown to be admitted in evidence on behalf of the plaintiffs in High Court Form Nos. J-22 and J-23. However, as noted supra, the MOU does not bear any endorsement as required by Rule 4(1) of Order 13.10
The learned Judge did not have the occasion to judicially determine the question that he was required to do in terms of Section 33 of the Act because the MOU was never admitted in evidence. I am of the further opinion that even now, the learned Judge of the trial Court retains the power to judicially determine as to whether the MOU ought to be admitted in evidence or not since admittedly it is inadequately stamped. I hold that he was perfectly justified in granting opportunity to the petitioners, who consented to its impounding. If at all they are interested in having the same admitted in evidence, they ought to comply with the order of the trial Court.
15. I find no reason to interfere. The revisional application stands dismissed, without order for costs.
16. The records of the trial Court shall be transmitted to it immediately by the office.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) 11 Later The prayer for stay of operation of this order is declined.
(DIPANKAR DATTA, J.) 12