Uttarakhand High Court
Smt. Rekha Devi vs Buniyad Husain And Another on 15 September, 2015
Equivalent citations: AIR 2016 UTTARAKHAND 48, (2015) 113 ALL LR 858, (2016) 2 CIVILCOURTC 88, (2016) 130 REVDEC 529
Author: U. C. Dhyani
Bench: U. C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Civil Revision No.50 of 2015
Smt. Rekha Devi ... Revisionist
vs.
Buniyad Husain and another ... Respondents
Mr. Rajat Mittal, Advocate present for the revisionist.
Mr. Piyush Garg, Advocate present for the respondents.
U. C. Dhyani, J. (Oral)
1. Present Civil Revision has been filed by the revisionist against the order dated 01.05.2015 passed by the Judge, Small Causes Court / Additional District Judge, Vikasnagar, Dehradun in S.C.C. Suit No.33 of 2012, titled as Smt. Rekha Devi vs. Buniyad Husain.
2. The grounds taken up by the revisionist in the present civil revision are as follows:
"(A) After considering the application and after hearing the arguments at length, learned trial court allowed the application filed by the respondent no.1 and taken on record the documents, vide its order dated 01.05.2015. (B) While passing the impugned order, learned trial court has failed to appreciate the fact that the respondent no.1 has not approached before this Hon'ble Court with clean hands and concealed the material fact while placing on record the application for taken on record the documents because at the time of filing the written statement, an application is moved by the respondent no.1 by giving an explanation that why the written statement is being filed after expiry of prescribed period of time, wherein it has been stated that since the reply to the legal notice is made by Shri Nushrat Ali Ansari and the documents relating thereto are with the earlier counsel and some more documents are within the possession of S. K. Gupta and after perusal the same from the office of the Registrar, the said written statement is being filed on 19.12.2012, which fact, clearly shows that the documents were always in possession of the respondent no.1, however, the said fact has been -2- concealed by the respondent no.1 and cooked up a new story for taken on record the documents, therefore, the same are liable to be rejected and the order impugned deserves to be set aside.
(C) While passing the impugned order learned court has failed to appreciate the fact that the respondent no.1 has relied upon the agreement to sell, which is said to have been executed between the wife of the respondent no.1 and Smt. Jai Kaur on 26.05.2005, whereby it is alleged that Smt. Jai Kaur was the owner of the property in question and the said property have been agreed to purchase by the wife of the respondent no.1. However, instead of filing the original document, the respondent no.1 filed the photocopy of the agreement to sell dated 26.05.2005 and the same is neither properly stamped nor duly registered u/s 17 of Registration Act, therefore, the impugned order is liable to be set aside. (D) While passing the impugned order, learned court has failed to appreciate the fact that it is well settled that the documents containing contract to transfer for consideration, any immovable property for the purpose of Section 53A of Transfer of Property Act shall be registered and if such document is not registered, then they shall not have effect for any purpose and the same is not liable to be taken into consideration and the plea taken by the respondent no.1 is liable to be rejected. (E) While passing the impugned order, learned court has also failed to appreciate the fact that the instruments which is not duly stamped is inadmissible in evidence and the same is liable to be rejected. Section 35 of the Indian Stamp Act clearly provides that no instrument chargeable with duty shall be admitted in evidence and further it also shut any secondary evidence of such instrument for allowing such evidence to be led in when the original admittedly chargeable the duty was not stamped would be tantamount no relevancy in the eye of law and thus the same is liable to be rejected and the issue raised in regard to the same shall be decided primarily after framing preliminary issue and the same cannot be left to take consideration at the time of leading evidence.
(F) While passing the impugned order, learned court has failed to appreciate the fact that where the original document which is not duly stamped and also not registered cannot be taken into consideration in any manner whatsoever, then in that circumstances the photocopies of the same is also inadmissible and cannot be considered as secondary evidence."
3. An application (paper no.59C) alongwith an affidavit (paper no.60C) was filed on behalf of the defendant no.1 before -3- the Judge, Small Causes Court. The defendant no.1 filed his written statement on 19.12.2012. He filed certain documents alongwith a list (paper no.61C), which included the photocopy of the agreement dated 26.05.2005, notice received from PWD on 10.09.2005, copy of the notice sent by the plaintiff to the defendant on 11.06.2012, reply of notice dated 27.06.2012, postal receipts thereof, copy of the notice dated 24.09.2009 and the copy of the reply notice dated 23.10.2009. Plaintiff filed objections on the same arguing, inter alia, that there was delay in filing the same; the said documents were already in the knowledge of the defendant; the documents in question are not at all relevant to the decision of the case; they are forged documents and, therefore, the same should not be taken on record. The defendant no.1 argued before the trial court that the suit was instituted by the plaintiff against the defendant no.1 for eviction, whereas he (i.e. defendant no.1) is not the tenant of the suit property. In fact, the owner of the suit property was Smt. Jai Kaur, who executed an agreement in favour of the wife of defendant no.1 on 26.05.2005 and executed a sale deed. According to the defendant no.1, he is the owner in possession of the disputed property. Defendant no.1 wanted these documents to be brought on record and cited the following decisions in support of his contention:
(i) Om Prakash & another vs. Devraj, AIR 1995 (P&H) 349
(ii) Smt. Ratan Sharma vs. Ambassador Drycleaners & another, AIR 1997 (Raj.) 75
(iii) Dinesh Kumar Soni vs. Bhanwar Singh, CLJ 2007 (2) 570
(iv) M/s K. B. Sah & Sons Pvt. Ltd. vs. M/s Development Consultant Ltd., 2008 (3) C.I.V. 327 -4-
4. Plaintiff, on the other hand, relied upon the following decisions before the trial court:
(i) Sugreem Prasad Dubey & another vs. Sitaram Dubey, 2004 (1) M.P.H.T. 488
(ii) Banarasi Das vs. Om Prakash & another, 2005 (2) C.C.C. 629
(iii) Shankar Lal vs. Civil Judge (J.D.) Shahpura, 2006 A.I.R. (Raj.) 187
(iv) Mahant Krishna Giri, Chela Mahant Vikram Giri vs. Smt. Deepa Devi, 2013 (4) Civil Court Cases 463 Uttarakhand
5. Learned Judge, Small Causes Court, in para 11 of the impugned order, has observed that the evidence of the parties has not yet started and application (paper no.59C) relates to the written statement filed by him. It was observed in para 12 of the impugned order that no doubt, the photostat of the original one is filed, but it cannot be said at this stage as to whether the said document is admissible in evidence or not. In exceptional cases, photostat copy may be proved as secondary evidence. The trial court, therefore, held that, at present, the court has only accepted the documents, which were filed by the defendant. The application (paper no.59C) was, therefore, allowed on payment of cost of Rs.1200/-. The documents, thus filed by the defendant no.1, were taken on record.
6. Learned counsel for the respondents relied upon a decision of coordinate bench of this Court in Smt. Saroj Devi Jaiswal & another vs. Addl. District Judge & another, 2011 (1) U.D. 95, wherein it was held:
"3. The learned counsel for the petitioners submitted that after the closure of the evidence, no further evidence -5- could be led by the parties in view of the provision of Order 18 Rule 2 of the C.P.C.
4. In my opinion, the submission of the learned counsel for the petitioners is bereft of merit. For facility, the provision of Order 18 Rule 2 is quoted hereunder:-
2. statement and production of evidence -(1) On the day fixed for the hearing of the suit or on any other day which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case.
[(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party. (3C) No adjournment shall be granted for the purpose of filing the written arguments unless the court, for reasons to be recorded in writing, considers it necessary to grant such adjournment. (3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.]
5. ................................................
6. The Court held that the evidence can be led even after the closure of evidence if sufficient cause was shown and the whole purpose of allowing the parties to -6- lead further evidence was that substantial justice must be made between the parties. In the present case, the plaintiff submitted that initially the defendant admitted the execution of the rent agreement but, thereafter, resiled from it and, consequently, this become a necessary ground to lead further evidence. In the initial stage, the plaintiff did not prove this document since it was admitted by the other parties. But when new evidence was led by the defendant, it becomes imperative for the plaintiff to move an application to lead further evidence in order to prove that the rent agreement was executed between the parties. In the opinion of the court, sufficient grounds are given out for leading further evidence. In the result, the court is not inclined to interfere in the impugned order. The writ petition is dismissed. Since the petitioners are permitted to lead evidence, it would be open to the court below to permit the defendants to lead evidence in rebuttal."
[Emphasis supplied]
7. It will be worthwhile to reproduce hereinbelow paras 9, 10 & 11 of a decision of Hon'ble Allahabad High Court in Ajay Swaroop Mehrotra vs. D. N. Raina (deceased), (2009) 1 AWC 141:
"9. Before proceeding, it could be relevant to take a look into certain provisions of the Code of Civil Procedure. Order 7 Rule 14 of the C.P.C. provides for the production of documents of which the plaintiff's sues or relies upon. Sub clause (3) of Order 7 Rule 14 of the C.P.C. provides that a document not filed in the list could not be produced or received in evidence subsequently except with the leave of the Court and that the Court on sufficient cause can accept the document at a later stage if it finds relevant to the issue. This power has been given to the Court to ensure that substantial justice is done between the parties. Similarly, Order 16 Rule 1 of the -7- C.P.C provides furnishing a list of witnesses who are likely to give evidence and such list is required to be filed within a stipulated period immediately after the settlement of the issues. Sub clause (3) of Rule 1 of Order 16 also provides that the Court may for reasons to be recorded, summon a witness whose name was not found in the list on sufficient cause being shown. Order 16 Rule 1-A of the C.P.C provides that any party to the suit may bring any witness without applying any summon under Rule 1 to give evidence or to produce documents. Similarly, under Order 18 Rule 4 of the C.P.C., documents are filed and relied by the parties, the proof and admissibility of such documents so filed along with affidavit is subject to such orders of the Court.
10. These provisions which have been elaborated above, show that a mechanism or methodology has been provided to produce documents or to lead oral evidence and that the said provisions does not shut out a party if a document or the name of the witness is not filed or led at the stage when it was required to do so. Documents can be filed at a later stage and witnesses can be called and even at a subsequent stage and, in both cases, the leave of the Court has to be taken which can only be granted on sufficient cause being shown. The idea behind this is, that substantial justice must be made between the parties and this is a laudable feature of our judicial system and which is reflected in the aforesaid provisions. In my opinion, the approach of the Court in such matters should not be to defeat the ends of justice nor cause undue delay in the litigation between the parties.
11. In the light of the aforesaid, failure to allow the plaintiff to bring on record the expert opinion, in my opinion, would only affect the quality of his evidence which, at the present moment, is still to be led by the parties. The trial court should not normally shut and -8- close the evidence of the parties, unless the conduct of the parties was contumacious or there was serious laches on the part of the parties. The trial court should exercise its discretion in such a manner which would advance the cause of justice. The trial court may reject an application for evidence, where it finds that the parties were circumventing the process of the Court or were not allowing the Court to proceed with the matter."
[Emphasis supplied]
8. Learned counsel for the revisionist placed reliance upon a decision of coordinate bench of this Court in Ganesh Singh Karki vs. Daya Kishore Joshi, 2013 (1) U.D. 603, wherein it was observed:
"15. On the issue, whether the document can be admitted in evidence for collateral purpose, the learned counsel has placed reliance on the judgment Avinash Kumar Chauhan v. Vijay Krishna Mishra, reported in AIR 2009 Supreme Court 1489, wherein it has been held that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if any document is under-stamped, that cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act." [Emphasis supplied]
9. It will be useful to reproduce paras 19, 20 & 21 of a decision of Hon'ble High Court of Andhra Pradesh in T. Basavaraju (dead) through L.R.s & others vs. T. Nagaratnam & others, 2006 (101) RD 303, which read as under:
"19. Learned Counsel for the petitioner also contended that Ex.B-38 being only a carbon copy of the original -9- document, the question of either stamping it properly or registering the same does not arise. I am afraid, I cannot accede to the said contention. It is not the specific case of the revision petitioner that the original is available and he can produce the same. It is his contention that the document is in the custody of the respondent. In fact, there is no evidence to that effect and to show that under such and such circumstances, the original of Ex.B-38 went into the custody of the respondents. His whole case is that Ex.B-38 is a carbon copy of the earlier family settlement deed and in view of the same, the partition sought in the present suit is not tenable. Therefore, once the original is not stamped and registered, whether it is carbon copy or otherwise, when it is sought to be passed into service for the purpose of proving their case and since the property in question is immovable property and its value is more than Rs.100/-, the same requires to be properly stamped as well as registered and unless it is properly stamped and registered, the same cannot be admitted in evidence.
20. On 31.12.2003, the Court below recorded "Heard. The said documents are marked as Exs. B-35 to B-38. For report - 5.1.2004". In fact, there was no judicial determination as to the nature of the document and its admissibility in evidence by the Court below on that day i.e., 31.12.2003. Admittedly, Ex.B-38 was marked through D.W.6 and there was no endorsement by the Court that the other side had not objection for the same being marked. It is curious to note that the very same Presiding Officer, who directed marking of Ex.B-38 has passed the impugned order and it has been noted in the impugned order 'on that day, the question of admissibility of the documents did not come up for consideration and that question was not decided'. Under these circumstances, the Court below went into the judicial determination as to the admissibility of Ex.B-38 -10- and found that it is not admissible in evidence, unless and until it is properly stamped and registered.
21. In a matter like this, unless and until there is a judicial determination, it cannot be said that it has been admitted in evidence, though it is marked. Mere marking of the document itself is not sufficient and there should be judicial determination as to the nature of the document and its admissibility. Further, the words 'admitted in evidence' appearing in section 36 of the Stamp Act means 'admitted after judicial consideration of the circumstances relating to the admissibility'. There shall be a judicial determination of the question whether the document can be admitted in evidence or not for want of stamp duty etc. In this case, on the date when the document was marked, the learned Judge has not applied his mind as to the admissibility of the document and consequently, there was no judicial determination in regard to the objection raised by defendants 4 & 5. Merely because the document was marked, it would not mean that the objection raised by the other side has been rejected. In the instant case, there is absolutely no record that on that day i.e., 31.12.2003 or any day before that, the Trial Court determined judicially the question regarding the admissibility of Ex.B-38. No opportunity was given to the other side and the document was mechanically marked without there being judicial scrutiny. In fact, even otherwise,the Court may, at any stage of the suit, reject any document, which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection (Order XIII Rule 3 CPC). In this case, the same thing happened when a proper application was filed by the respondent defendants 4 &
5. The application was considered and the impugned order was passed."
[Emphasis supplied] -11-
10. Learned counsel for the revisionist further relied upon a decision of Hon'ble Supreme Court in Avinash Kumar Chauhan vs. Vijay Krishna Mishra, AIR 2009 SC 1489 to argue that the photocopy of an unregistered document is not admissible in evidence. If the documents are taken on record, it will not serve the purpose, inasmuch as, the same cannot be read in evidence.
11. Filing of document is one thing and the admissibility of documents is another. If the court below has permitted the defendant no.1 to file certain documents, it does not mean that the same are admissible in evidence, inasmuch as, the same will be adjudicated by the court below at an appropriate stage. In other words, the admissibility of the alleged documents will be considered at an opportune moment. What the court below has exactly done in the matter is that it has simply permitted the defendant no.1 to file documents. Learned court below has not said that the alleged documents are admissible in evidence.
12. Learned counsel for the revisionist contended that since the unregistered and unstamped documents cannot be read in evidence, then what is the relevancy to file the alleged documents by the defendant no.1? This Court has already noted in the foregoing paragraphs of this judgment that filing of document is one thing and the admissibility of documents is another. The Court below has only permitted the defendant to file documents only and has nowhere said that the document is admissible in evidence, which can be adjudicated by the court below at a befitting stage.
13. Needless to say that, according to Order 13 Rule 3 C.P.C., the Court may at any stage of the suit reject any document, which it considers irrelevant or otherwise inadmissible, recording the -12- grounds of such rejection. In the instant case, the court below has not yet applied its mind with regard to the admissibility or relevancy of the documents thus filed on behalf of the defendant no.1. Hence, this issue is still open to be adjudicated by the court below.
14. In view of the above, this Court finds that there is no illegality and infirmity in the impugned order. Civil Revision, therefore, fails and is dismissed.
15. Liberty is, however, granted to the revisionist to raise a plea of inadmissibility of the documents thus permitted to be filed at an appropriate stage.
(U. C. Dhyani, J.)
Dated 15th September, 2015
Rawat