Karnataka High Court
Smt. Malliga Paneer Selvam W/O Sri R. ... vs Sri Raja Sathyanarayana Shetty S/O Late ... on 28 March, 2007
Equivalent citations: ILR2007KAR2786, 2007(5)KARLJ222, AIR 2007 (NOC) 1816 (KANT.) = 2007 (4) AIR KAR R 326, 2007 (4) AIR KAR R 326, 2007 A I H C 2526, (2007) 5 KANT LJ 222, (2007) 4 ICC 234
ORDER Abdul Nazeer, J.
1. In this case, petitioner has called in question the order passed by the XV Additional City Civil Judge, Bangalore, in O.S. No. 1036/2000 dated 12.9.2006 whereby the court below has directed the petitioner to pay duty and penalty in a sum of Rs. 81,675/- on document - Ex.D1 within two weeks from the date of the said order.
2. The first respondent/plaintiff has filed the aforesaid suit against the petitioner and other respondents seeking their eviction from the suit schedule property and for delivery of vacant possession in his favour. Petitioner and respondent Nos. 2 to 4 are the defendants in the said suit. They have contested the said suit Plaintiff filed his affidavit of evidence in the said suit on 29.3.2004. During his cross-examination by the learned Counsel appearing for the defendants, he was confronted with a lease deed. Learned Counsel for the plaintiff raised an objection for marking of the said document, out the ground, that it is insufficiently stamped and that it requires registration. The court below has observed that separate order will be passed with regard to the said objection and subject to the said order, the document is marked in evidence as Ex.D1. The relevant portion of the deposition of the plaintiff is as under:
It is not correct to suggest that, on 28.10.1992, 2nd defendant and myself had entered into a lease agreement in respect of suit schedule property. I am not having any document to show the jural relationship of landlord and tenant Ex.C1 bears my signature at Ex.D-1(a) to Ex.D-1(i). (Advocate for plaintiff raises objection regarding this document and contends that it is insufficiently stamped and also it requires registration. Separate order is passed regarding stamp duty and subject to which it is marked).
(emphasis supplied)
3. Thereafter, the court below has recorded in the order sheet as under:
29.3.2004 Cross of PW-1 PW1 examined in full marked Ex.D1 the office to calculate D & P payable if any regarding D1 by regarding 31.3.2004.
4. On 31.3.2004, office has put up a note regarding duty and penalty payable by the first defendant at Rs. 9,48,090/-, The matter was heard cm the amount of duty and penalty payable by the first defendant. The court below has come to a conclusion that first defendant is liable to pay duty and penalty and quantified the same at Rs. 81,675/-, The court below has not decided the question relating to registration of the document. Therefore, the effect of non-registration of the said document is not considered in this writ petition. The petitioner has not challenged the quantification of the duty and penalty in this writ petition. The only question to be considered in this writ petition is whether the court below is justified in directing the petitioner to pay duty and penalty on Ex.D1?
5. I have heard the learned Counsel for the parties.
6. Learned Counsel for the petitioner submits that the document in question has already been marked in evidence by the court below as Ex.D1 as per under Order 13 Rule 4 of Code of Civil Procedure. He further submits that once the document is admitted in evidence, such admission cannot be called in question at any stage of the suit or the proceedings, on the ground, that the instrument had not been duly stamped. He therefore submits that the court below is not right in passing the impugned order directing the petitioner to pay duty and penalty. Learned Counsel for the petitioner has placed reliance on the following decisions in support of his contentions:
(i) Javer Chand and Ors. v. Pukhraj Surana
(ii) Krishna v. Sanjeev ILR 2003 KAR 3716.
(iii) Shyamal Kumar Roy v. Sushil Kumar Agarwal 2007 AIR SCW 234.
7. On the other hand, learned Counsel for the respondents submits, that the document was marked subject to objections. Therefore, the court below was justified in directing the petitioner to pay duty and penalty in terms of the impugned order Learned Counsel for the respondents have placed reliance on the following decisions in support of their contentions:
(i) Ram Rattan (dead) by legal representatives v. Bajrang Lal and Ors.
(ii) Bipin Shantilal Panchal v. State of Gujarat and Anr. AIR 2001 SC 1158.
(iii) Riyaz Khan and Ors. v. Modi Mohammed Ismail and Ors. .
8. I have carefully considered the arguments of the learned Counsel made at the bar and perused the materials placed on record.
9. The undisputed facts are that the plaintiff has filed a suit for ejectment of the defendants from the suit schedule property. On 29.3.2004, the plaintiff filed his affidavit of evidence. During his cross-examination, the lease agreement dated 28.10.1992 (Annexure 'D' to the writ petition) was confronted to the plaintiff and it was marked as Ex.D1. While marking the document, learned Advocate for the plaintiff has raised an objection, on the ground, that it is insufficiently stamped and that it requires registration. The court below has made an observation that separate order will be passed regarding stamp duty and subject to the separate order, the document is marked in evidence. Even in the order sheet, the court below has recorded that P.W1 is examined in full and marked Ex.D1. Office was directed to calculate deficit court fee payable, if any, on Ex.D1. On 31.3.2004, office has put up a note stating that the duty and penalty payable on Ex.D1 is Rs. 9,48,090/-. On this question, the matter was heard. The court below has passed the impugned order directing the first defendant to pay the duty and penalty in a sum of Rs. 81,675/- on Ex.D1 within two weeks from that date. In this connection, the court below has observed as under:
A reading of the above deposition sheet as well as the order sheet clearly goes to show that the plaintiff has raised his objection for marking Ex.D1 before marking the document and that his objection is also noted while marking that document and it is subject to the said objection and subject to the order passed on that day, the said document was marked. On the same day, the office was directed to calculate the duty and penalty payable on that document, if any.
10. Section 34 of the Karnataka Stamp Act, 1957 ('Stamp Act' for short) states that instruments not duly stamped are inadmissible in evidence. It is as under
Section 34: Instruments not duly stamped inadmissible in evidence, etc: 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.
11. Section 35 of the Stamp Act states that when an instrument is already admitted in evidence, such admission shall not be called in question at any stage of the same suit. The said provision is as under:
Section 35: Admission of instrument where not to be questioned: Where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
12. Dealing with an identical provision under the Indian Stamp Act, 1899, the Supreme Court in the case of Javer Chand AIR 1961 SC 1655 has held that where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court rightly or wrongly decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. It has been further held as under:
Once the 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 examination and cross-examination of their witnesses, Section 36 of the Act comes into operation. 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.
(emphasis supplied)
13. It is clear from the above observations that once the 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, objection cannot be raised at a later stage. In the present cause, me facts are entirely different. The document was marked subject to objection and a separate order was passed directing the first defendant to pay the duty and penalty. Therefore, marking of the document Ex.D1 is subject to the said order.
14. In the case of Ram Rattan AIR 1978 SC 1393, the Supreme Court after considering the above observations made in Javer Chand's case (supra) has held that when the document is tendered in evidence by the plaintiff while in witness box and objection is raised by the defendants that the document is inadmissible in evidence as it is not duly stamped or for want of registration, it is obligatory upon the trial Judge to apply his mind to the objection raised and to decide the objection in accordance with law. It has been further held thus:
This however would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of, it would none-the-less be obligatory upon the court to decide the objection.
The Court has further held as follows:
The endorsement made by the trial Judge that "objected, allowed subject to objection", clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation, Section 36 would not be attracted. AIR 1961 SC 1655, Rel. on.
15. In the case of Bipin Shantilal Panchal AIR 2001 SC 1158, the Apex Court with a view to accelerate the trials in criminal cases has held, that where admissibility of the document is objected, then the Court should tentatively mark the objected document as an exhibit and can determine the objection at the last stage of the case. It has been further held as under:
However, we make it clear that if the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further.
16. Again, in the case of Riyaz Khan ILR 2002 KAR 3369, this Court has held as under:
When the objection is raised for admitting the document in evidence and the document is admitted or marked subject to such objections and it clearly indicates that at that stage objection raised was not judicially determined and the document was merely tentatively marked and taking decision on the objection at a later stage cannot be said to be impermissible or without jurisdiction. Non-consideration of the objections and marking the document at the stage of admitting it is a mistake of the Court and the litigating parties cannot be made to suffer for the same.
17. As held by this Court in Krishna's case ILR 2003 KAR 3716, the document is marked in evidence for its identification. The document has to be admitted in evidence in accordance with Order 13 Rule 4(1) of the Code of Civil Procedure. The Court has laid down the procedure for admission of the document after the amendment of the Code of Civil Procedure as follows:
15. Therefore, the proper procedure to be followed by the Courts after the amendment of the code of Civil Procedure would be as under:
(a) When the case is posted for evidence, the examination-in-chief of a witness shall be on affidavit unless ordered otherwise;
(b) When the affidavit is sought to be filed on the date the case is posted for evidence, the Court should insist mat the witness whose affidavit is sought to be filed enters the witness box, takes oath and thereafter he/she shall hand over the affidavit containing his/her examination-in-chief to the Court In other words, the Court should not receive the affidavit containing the examination-in-chief of a witness by his/her Counsel, thus preventing the possibility of the witness disowning such affidavit;
(c) After the affidavit is received through the witness, the Court shall call upon the witness whether he/she has any documentary evidence to tender and if the witness tenders any documentary evidence, the same shall be received by the Court subject to objection raised by title opposite party;
(d) If objections are raised, the Court should judicially determine the question whether it can be admitted in evidence or not, then and there if the objection relates to insufficiency of stamp duty. If the objection is on any other ground, the Court shall follow the procedure laid down in the case of K. Anjaneya Setty v. K.H. Ranganath Setty ;
(e) If the Court decides to admit the document, then it shall follow the procedure prescribed under Order XIII Rule 4(1) CPC and mark the document.
18. In the case of Shyamal Kumar Ray 2007 AIR SCW 234, a development agreement dated 16.1.1995 was exhibited without any objection on the part of the appellant on 17.2.2003. The parties also adduced their respective evidence on 16.2.2005. The matter was posted for arguments in the suit on which date the appellant filed two applications, one for recalling of the order dated 17.2.2003 and another for sending the said documents to the Collector for impounding thereof in terms of Section 38 of the Indian Stamp Act. In other words, the document was marked without any objection and the trial has continued. In this background, the Apex Court has held that once the document is marked in evidence, the Court is prohibited from reopening the same. That is not the position in the present case.
19. From the discussions made above, it is clear that if an objection is raised with regard to admissibility of the document on the ground that the document is not duly stamped, the Court has to decide the objection judicially then and there itself. Even if the document is marked subject to objection, it only means that the document was tentatively marked. The objection for marking the document is not judicially determined. In such a situation, Section 35 of the Act has no application. In the present case, marking the document Ex.D1 without first judicially deciding the objection regarding stamp duty is a clear mistake. The document was tentatively marked in evidence subject to deciding the objection. Later on, the court below has decided the question and has held that the first defendant is liable to pay duty and penalty on the said document. The court below has to decide the effect of nonregistration of Ex.D1 at an appropriate stage in accordance with law.
20. Having given my anxious consideration to the arguments of the learned Counsel made at the bar, I am of the view that there is no merit in this writ petition. In the result, writ petition fails and it is accordingly dismissed. No costs.