Andhra HC (Pre-Telangana)
Vemi Reddy Jkota Reddy vs Vemi Reddy Prabhakar Reddy on 19 November, 2003
Equivalent citations: 2004(2)ALD627
ORDER V. Eswaraiah, J.
1. The petitioner herein is the plaintiff and the respondent herein is the defendant. The suit is filed for specific performance.
2. For the sake of convenience, the parties will be referred to as arrayed in the suit.
3. The plaintiff filed O.S. No. 35 of 1999 on the file of the District Judge, Nellore, for specific performance of the agreement of sale, dated 11-2-1999, executed by the defendant, who is no other than the brother of the plaintiff, in favour of the plaintiff and also to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property.
4. The suit was filed in November 1999. The defendant filed his Written Statement and in Para-19 of the Written Statement it is stated that the agreement of sale dated 11-2-1999 is not admissible in evidence for want of proper stamp.
5. The Court below framed the issues on 19-1-2000 wherein the relevant issues are issue Nos.1 and 3. Issue No. 1 is, "whether the alleged agreement of sale dated 11-2-1999 is true, valid and binding on the defendant" and issue No. 3 is, "whether the plaintiff is entitled for specific performance of the agreement of sale dated 11-2-1999".
6. The suit came up for trial and inconsonance with Order-18 Rule-4 of the Code of Civil Procedure, the plaintiff as P.W.1 filed his Sworn Affidavit as his Chief-Examination and the affidavits of other witnesses on his behalf were also filed in June 2003. Along with the affidavit, the plaintiff filed the list of documents, which were marked as Exs.A1 to A22. The agreement of sale dated 11-2-1999 and the endorsement thereon as regards payment of a sum of Rs.10,00,000/- received by the defendant on 26-4-1999 are marked as Exs.A1 and A2. Ex.A1 agreement of sale dated 11-2-1999 was produced along with the plaint on 9-11-1999, which was admitted by P.W.1 in his chief- examination by way of the sworn affidavit and the endorsement thereon are marked as Exs.A1 and A2 and the District Judge, Nellore, put his initial on 15-7-2003 on the said documents seal.
7. The defendant filed an affidavit dated 14-7-2003 along with the petition under Order-18 Rule-4 of the Code of Civil Procedure, which was received by the plaintiff's Advocate on 15-7-2003 at 11.30 A.M., with an endorsement 'for counter'. The said petition was filed by the defendant to declare that the documents marked as Exs.A1 and A2 in the chief examination of P.W.1 are not admissible in evidence. The original agreement of sale dated 11-2-1999 alleged to have been executed by the defendant in favour of the plaintiff is Ex.A1 and the endorsement of payment of Rs.10,00,000/-, alleged to have been received by the defendant on 26-4-1999 and the said acknowledgement by him in Ex.A1 agreement of sale is Ex.A2.
8. The petition filed by the defendant on 15-7-2003 was returned on 17-7-2003 with the following endorsement:
'State, how this petition is maintainable at this stage as already concerned documents are marked, to be stated. Time (7) days'.
9. Further, on 19-7-2003, the said petition was represented stating that "stamp duty and penalty can be levied on the documents at any stage of the suit. As per the decision , the agreement of sale, whereunder possession of the property was already delivered, is liable for payment of stamp duty and penalty. Thus, Exs.A1 and A2 are liable for payment of stamp duty and penalty. The xerox copies of the above decision is herewith enclosed for ready reference. Hence, this petition is maintainable".
10. On 23-7-2003, the said petition was submitted for orders, putting a note by the office to the effect that "this office took an objection regarding the stamp duty and penalty on Exs.A1 and A2. Decision is enclosed herewith". On the said office submission, the Court made an endorsement to the following effect:
"Issue notice to the respondent calling upon him to pay stamp duty and penalty towards Ex.A1 as a sale deed. For payment of stamp duty and penalty, call on 1-8-20003."
11. On 1-8-2003, notice was given to other side for payment of stamp duty and penalty on Ex.A1. On 1-8-2003, counter was filed and the matter was posted for enquiry to 8-8-2003. On 8-8-2003, arguments were heard and the matter was posted for orders on 19-9-2003. From 19-9-2003, the matter was adjourned to 23-9-2003. On 23-9-2003, orders were pronounced allowing the application of the defendant and the plaintiff was directed to pay the stamp duty and penalty on Ex.A1, for the further proceeding with trial and in the event of failure to comply with the above direction, the trial of the suit shall proceed without marking the said agreement of sale. One months time is granted to the plaintiff to comply with the direction referred to above. The said petition is allowed accordingly.
12. Questioning the said order in I.A.No. 188 of 2003 in O.S.No. 35 of 1999, dated 23-9-2003, this Civil Revision Petition is filed under Article 227 of the Constitution of India.
13. Mr. M. Venkatanarayana, the learned Counsel appearing for the plaintiff submits that the order of the Court below is illegal, vitiated by jurisdictional error and material irregularities and that the Court below erred in directing the plaintiff to pay stamp duty and penalty in respect of the document marked as ExA1 by erroneously considering that marking of the said document in the chief-examination of the plaintiff by way of affidavit is only for identification purpose. It is stated by him that once the documents are exhibited in consonance with Order-13 Rule-4 of the Code of Civil Procedure, admissibility of the said document cannot be reopened in view of the bar under Sec-36 of the Indian Stamp Act and the Court below lacks jurisdiction to re-determine the admissibility of the said document. He further submits that under Sec-35 of the Indian Stamp Act, regarding admissibility of the documents, which requires stamp duty, objection has to be raised at the time of tendering them in evidence. When once such an objection is not raised, Sec.36 of the Indian Stamp Act postulates a bar to raise such an objection. It is further submitted that the agreement of sale was admitted as Ex.A1 in evidence as provided under Order-13 Rule-4 of the Code of Civil Procedure. Therefore, the Court below has no power to re-agitate the said issue, directing the plaintiff to pay the stamp duty and penalty within one month and in default thereof, the trial of the suit shall proceed without marking the agreement of sale. Thus, he submits that the said order is illegal, without jurisdiction and un-sustainable.
14. The relevant facts in issue are not in dispute. The agreement of sale is executed on a stamp paper of one hundred rupees and according to the said agreement of sale, the defendant had received a sum of Rs.10,00,000/- and subsequently another sum of Rs. 10,00,000/- under Ex.A2 endorsement dated 26-4-1999. The only balance amount of Rs.1,00,000/- has to be received by the defendant for executing a regular sale deed. It is also stated in the agreement of sale that the possession of the property was already delivered to the plaintiff. Thus, there is no dispute with regard to the payment of the required stamp on Ex.A1 as a sale deed as possession was already delivered. Therefore, the said agreement of sale requires necessary stamp duty and penalty under the Stamp Act.
15. Under Sec-35 of the Indian Stamp Act, 1899, "no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped". There are certain exceptions. Admittedly, the document does not fall under the said exceptions. Under Sec-36 of the Indian Stamp Act, "where an instrument has been admitted in evidence, such admission shall not, except as provided in Sec.61 be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped".
16. The learned counsel thus submits that even though the said document requires necessary payment of stamp duty, when once the document is received in evidence in the chief- examination of the plaintiff under Order-18 Rule-4 of Code of Civil Procedure, admissibility of the said document cannot be questioned.
17. Mr. C.V. Nagarjuna Reddy, the learned counsel appearing for the defendant, submits that under Order-13 Rule-3 of Code of Civil Procedure, the Court may at any stage of the suit, reject any document, which it considers irrelevant or otherwise inadmissible, recording the grounds for such rejection. He further submits that Ex.A1 in question is not at all admitted in evidence and therefore, Sec-36 of the Indian Stamp Act, 1899, has no application to the facts of the present case. He further submits that when once the instrument is admitted, even though it was not duly stamped, no doubt, any party to the suit cannot question as regards the admission of the document, but according to him, in the instant case, the said document in fact was not at all admitted and thus, he justifies the order of the Court below.
18. The question that arises for consideration is as to whether Ex.A1 is admitted as required by law or not.
19. The learned counsel appearing for the plaintiff submits that when once an endorsement is made on the document as required under Order-13 Rule-4 of the Code of Civil Procedure, Sec.36 of the Indian Stamp Act saves that admission and the same cannot be questioned at a later stage. The pattern of examination of the witnesses has been changed pursuant to the amendment of Act 22 of 2002 with effect from 1-7-2002. Under Order-18 Rule-4 of the Code of Civil Procedure, in every case, the examination of the witnesses shall be on affidavits and the copies thereof shall be supplied to the opposite party by the party who calls him for evidence. Under proviso to Rule-4 of Order-18 of the Code of Civil Procedure, where the documents are filed and the parties rely upon the documents, the proof and admissibility of such documents, which are filed along with the affidavits, shall be subject to the orders of the Court. Prior to the amendment, exhibits are used to be marked during the course of chief-examination of the witnesses in the presence of their counsel and the parties. Therefore, insertion in the said proviso has become necessary for an order to be passed by the Court as regards the admissibility of the documents.
20. Mr. M. Venkatanarayana, the learned counsel for the plaintiff submits that the fact that there was an endorsement on Exhibits Seal, giving the particulars as mentioned in Sub Rule- 4 of Rule-13, as regards the number and title of the suit, name of the person producing the document i.e., by P.W.1 in the instant case, statement of its having so admitted by P.W.1 and the endorsement initialed by the District Judge is enough proof of admission as contemplated under Order-13 Rule-4 of the Code of Civil Procedure. He further submits that Order-13 Rule-3 of the Code of Civil Procedure is subject to Sec-36 of the Indian Stamp Act and, therefore, even if the said document is wrongly admitted, it cannot be questioned at any stage of the suit proceedings, except as provided under Sec-61 of the Indian Stamp Act. He further submits that under Sec-61 of the Indian Stamp Act, the appellate Court either on its own motion or on an application by the Collector can revise as regards the sufficiency of the stamps and penalty only, but not about the admissibility.
21. The learned Counsel for the plaintiff relied upon several Judgments of this Court as well as the Apex Court as regards his contention that when once a document is admitted rightly or wrongly in evidence, such admission shall not be questioned at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped. As per the Judgment of a Division Bench of this Court in the case of B. Ratnamala Vs. G. Rudramma, in respect of an agreement of sale, even though the possession was given prior to the agreement of sale, that document is liable to stamp duty as a sale deed and thus, there is no dispute as regards to the liability of the stamp duty to be paid in respect of the document, marked as Ex.A1, in question as a sale deed.
22. In Nalluru Basavaiah Naidu Vs. Takkella Venkateswarulu, AIR 1957 AP 1022 (Full Bench) Lothamasu Sambasiva Rao Vs. Thadawarthi Balakotiah, , Dokka Joganna Vs. Upadrasta Chayadevi, 1997 (5) ALT 628 and Isra Fatima Vs. Bismiallah Begum & another, 2002 (3) L.S. 149 this Court has categorically held that when once a document is admitted in evidence rightly or wrongly with or without objection, it is not permissible for the Court including the appellate Court or revisional Court to reject the same on the ground that it has not been duly stamped. When once the admissibility of the document to be received in evidence, before the document is marked and proved, is decided either on behalf of the plaintiff or the defendant, it cannot be questioned at a later stage.
23. In those cases, the document was a promissory note, which was insufficiently stamped, which cannot be admitted in evidence, but this Court held that when once the trial Court admits the document during the course of trial, the said Court, appellate or Revisional Courts are bound to act upon the said document, admitted in evidence.
24. The question that fell for consideration before the Full Bench in Lothamasu Sambasiva Rao Vs. Thadawarthi Balakotiah (3 supra) is "whether the plaintiff can bring action for recovery of the amount advanced by him, basing on the original consideration, when the promissory note on the foot of which action is brought is inadmissible in evidence under Section-.35 of the Stamp Act and if so under what circumstances".
25. In view of Sec.36 of the Stamp Act, the Full Bench has answered that "in view of the undoubted fact that the promissory note had been admitted in evidence, no objection could be raised at any stage in the suit that it was not duly stamped. Section-35 is only a bar to the admissibility of the unstamped or insufficiently stamped documents. Since an unstamped document is inadmissible in evidence no suit can be laid on such inadmissible document. As the said promissory note, though it was inadmissible in evidence, had already admitted and has become part of the record as one of the exhibits, the plaintiff can bring an action for recovery of the amount".
26. In Javer Chand and others Vs. Pukhraj Surana, the Supreme Court held that "where a question as to the admissibility of a document is raised on the ground that it has not been duly stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. When once the Court has rightly or wrongly decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section-35 of the Stamp Act 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". In the said case, the Apex Court has observed that "the hundis were marked as Exs.P1 and P2 and bear the endorsement as 'admitted in evidence' under the signature of the Court. Thus, it was observed by the Apex Court that 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. When once a document has been marked as an exhibit in the 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 chief-examination and also cross- examination of their witnesses, Sec.36 of the Stamp Act comes into operation. Further, when 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".
27. As already posed, the question is as to whether Ex.A1 is admitted as required by law or not is to be considered.
28. Admittedly, a petition under Order-18 Rule-4 of the Code of Civil Procedure has been filed by the defendant, along with the affidavit on 15-7-2003, stating that the plaintiff has filed his sworn affidavit in the form of chief-examination and showed the agreement of sale as Ex.A1 and the endorsement as Ex.A2, which are not admissible in evidence for want of proper stamp duty and penalty. A counter to the said petition has been filed by the plaintiff on 1-8-2003 stating that the possession of the suit schedule property was already delivered to the plaintiff before the date of the agreement of sale and the said agreement of sale dated 11-2-1999 is marked as Ex.A1 along with the affidavit filed by the plaintiff in the above suit. So, once the document is marked, the same cannot be questioned under Sec.36 of the Indian Stamp Act. It is further stated in the counter that there is no question of admissibility of the document, Ex.A1, being questioned at the stage of filing of the document along with the affidavit. As per the amended Civil Procedure Code, the admissibility of the document is to be considered at the time of the arguments after concluding the evidence and the Court cannot direct the plaintiff to pay any stamp duty and penalty without hearing with regard to the admissibility of the document. Thus, the plaintiff himself is in a proper understanding that the admissibility of the document was not at all decided.
29. The issue of admissibility of an inadmissible document has fallen for consideration before a Division Bench of the Rajastan High Court in Gordhansingh Vs. Suwalal and Kalyanbux, (V 46 C 62) and the relevant observations of the said Division Bench in Para-17 reads as follows:
"It does not appear from the judgment in that case that the document had been formally proved and tendered in evidence. But it has been observed that a preliminary objection was taken that the document having been admitted in evidence, it was not open to be called in question in revision on the ground that it was not duly stamped. In the case before us, the document has not been formally proved and tendered in evidence as no evidence has yet been recorded. A document can only be said to be admitted in evidence when it is formally proved and tendered in evidence. There are two stages relating to documents filed in the Court. Once is the stage when all the documents are filed by the parties in Court. The next stage is when the documents are formally proved and tendered in evidence. It is after the document is formally proved that the endorsement referred in Rule 4 of Order 13 of the Code of Civil Procedure is to be made..........."
30. In the instant case, the plaintiff himself admitted in his counter that the document, Ex.A1, which was filed along with the affidavit as chief-examination of the plaintiff cannot be decided and the admissibility of the document has to be decided only at the time of the arguments after concluding the evidence.
31. A similar question arose before this Court in Ganta Veera Mallu Vs. Tallapalle Komaraiah, 1964 II ALT 374 Vol. 14 with regard to the admissibility of a promissory note inadmissible in evidence, as the said promissory note was not properly stamped. It was the contention of the plaintiff that when once the promissory note is used in evidence, Sec.36 of the Stamp Act precludes the defendant from raising any objection at the subsequent stage of the suit regarding its admissibility. In the said case also, an objection was taken in the written statement as regards the admissibility of the promissory note in evidence. That document was also similarly marked as an exhibit and the signature of the Munsif Magistrate was there in the Exhibits Seal as if it has been used in evidence. But, the said procedure adopted by the Magistrate, obviously, was subject to the objection raised by the defendant in the said case. In the said case also, the District Munsif has not applied his judicious mind as in the instant case before it was marked and shown to the witness in regard to the question whether the objection raised by the defendant is sound or not.
32. Admitted in evidence, as appearing in Sec.36 of the Stamp Act, means admitted after judicial consideration of the circumstances relating to its admissibility. There shall be a judicial determination of the question whether it can be admitted in evidence or not for want of the stamp. On the day when the document was shown in the said case to the witness and marked, the District Munsif has not applied his mind to the admissibility of the document and consequently, there is no judicial determination in regard to the objection raised by the defendant. Merely because a document was marked and shown to the witness, it would not mean that the objection raised by the defendant has been rejected. In the instant case also, there is absolutely no record to show that on that day or any day before that the District Judge determined judicially the question as regard to the admissibility of Ex.A1, particularly when there was a specific objection in that behalf was raised not only in the written statement but also by way of a petition.
33. In the instant case, the District Judge has rightly considered the objection of the defendant on the application filed by him as regards the admissibility of the said document and held that there was no application of mind as regards the admissibility of the said document by the trial Court and the trial Court has not judicially determined the admissibility of the said document and, therefore, it cannot be said that Ex.A1 was duly admitted as required by law.
34. The plaintiff filed his affidavit along with the documents and also the affidavits of other witnesses relied on by him. The defendant also filed his affidavit and the documents in support of his case. The trial Court while receiving the affidavits of the respective parties, referred the documents as 'A'-series on the plaintiff's side and referred the documents as 'B'-series on the defendant's side. The trial Court, therefore, has rightly observed that merely because the plaintiff or the defendant made a reference in the affidavit in lieu of their chief-examination, the documents marked as 'A'-series and 'B'-series, it does not mean that the trial Court has admitted those documents as evidence. The question of De-exhibition of Ex.A1 does not arise when the said document is not at all admitted in evidence. In the instant case, the chief examination was filed in the form of affidavit and the documents referred to therein are marked as Exs.A1 and A2 and it does not mean that they are admitted in evidence. For the purpose of identification of those documents, 'A'-series and 'B'-series were given. In the instant case, the defendant has objected at the earliest point of time by filing the said application to declare that Ex.A1 is inadmissible in chief-examination itself tendered by the plaintiff in the form of the affidavit. The said objection, taken by the plaintiff, was rightly considered by the learned District Judge as the defendant was not given any opportunity to raise the objection, since the plaintiff has tendered his chief- examination in the form of the affidavit.
35. Under Order-18 Rule-4 of the Code of Civil Procedure, examination-in-chief shall be filed in the form of an affidavit and the copies thereof shall be supplied to the opposite party. As per the proviso to Rule-4 of Order-18 of the Code of Civil Procedure, the proof and admissibility of the documents filed by the respective parties along with the affidavit shall be subject to the orders of the Court.
36. As per Order-13 Rule-3 of the Code of Civil Procedure, the Court may at any stage of the suit, reject any document, which it considers irrelevant or otherwise inadmissible, recording the grounds for such rejection. No doubt, under Order-13 Rule-4 of the Code of Civil Procedure, when once the document is admitted in evidence, there is a bar under Section-36 of the Indian Stamp Act as regards the objection of admissibility of the document. In the instant case, no doubt, there is an Exhibits Seal, filling the blanks and initialed by the District Judge on 15-7-2003. But, the question that arises as to whether Ex.A1 is formally proved, which was tendered in evidence along with the affidavit of the plaintiff. There is no record to show that Ex.A1 was marked in the presence of the defendant as held by the Apex Court in Javer Chand Vs. Pukhraj Suran (6 supra). The Court has to judicially determine the matter as soon as the document is tendered in evidence before it is marked as an exhibit in the case. In the instant case, there is no judicial determination with regard to the admissibility of document, Ex.A1, which was tendered by the plaintiff along with his affidavit in the form of chief-examination. Therefore, it cannot be said that the document, Ex.A1, is admitted in evidence, merely because there is an affixure of the Exhibits Seal. I am, therefore, of the opinion that the said Exhibits Seal was mechanically stamped and the learned District Judge has initialed thereon even though, there was no judicial determination of the admissibility of the said document as required by law.
37. The question of admissibility of the said document was not at all decided. Therefore, the objection of the defendant was rightly upheld by the learned District Judge in the instant case. To avoid such controversies, I am of the view that when once the documents are filed along with the affidavits in the form of chief-examination, the Courts below shall give a specific date for the purpose of marking of the documents in the presence of their counsel and the respective parties, on which date, the admissibility of the documents have to be judicially determined before marking the documents and there shall be a specific endorsement of the Judge concerned to the effect that "admitted in evidence" as exhibit.
38. For the aforesaid reasons, I do not see any merits in the Civil Revision Petition and the same is liable to be dismissed.
39. Accordingly, the Civil Revision Petition is dismissed, at the stage of admission. However, there shall be no order as to costs.