Gujarat High Court
Mahendrabhai Natwarbhai Patel vs Navinbhai Nagjibhai Patel on 12 October, 2021
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4233 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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MAHENDRABHAI NATWARBHAI PATEL
Versus
NAVINBHAI NAGJIBHAI PATEL
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Appearance:
MS PJ DAVAWALA(240) for the Petitioner(s) No. 1
MANHARKUMAR M PARMAR(9151) for the Respondent(s) No. 1
MR AS ASTHAVADI(3698) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 12/10/2021
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. A.S. Asthavadi waives service of notice of rule for and on behalf of respondent No.1.
2. By way of present petition, petitioner, who is the original Page 1 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022 C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021 plaintiff before the Trial Court in Special Civil Suit No . 19 of 2016, has challenged the order dated 11.01.2018 passed below Exh. 12 in Special Civil Suit No.19 of 2016.
3. Short facts of the present case may be summarized as under:
The petitioner being a original plaintiff filed Special Civil Suit No.19 of 2016 before the learned 2 nd Additional Senior Civil Judge, Ankleshwar claiming amount of Rs.23,25,000/-
from the defendant alongwith the interest at the rate of 12% per annum between the period from 14.08.2015 to 14.03.2016 and decree was prayed in his favour for the amount of Rs.24,87,750/- i.e. principle amount and interest therein. It was further prayed that running interest till the defendant would make payment aforesaid amount may be awarded. Alongwith the plaint, plaintiff filed a list of documents Exh.11 and three documents were marked as (1) 11/1, mortgage deed, (2) 11/2- notice to defendants and (3) mark 11/3- post acknowledgement receipts of the notice were produced.
Thereafter by way of application Exh.12, the petitioner requested before the Trial Court to give exhibits to the aforesaid three documents as those documents were necessary and material for the proof of lending of money by the plaintiff to the defendant. The learned Trial Judge, after Page 2 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022 C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021 hearing the parties, partly allowed the application Exh.12 vide order dated 11.01.2018 refusing to exhibit the document produced at Mark 11/1. Two other documents produced at Mark 11/2 and 11/3 were ordered to be exhibited with a rider to prove these documents. The present petitioner being aggrieved by the order dated 11.01.2018 passed by the learned 2nd Additional Senior Civil Judge, Ankleshwar below Exh.12 has preferred this petition.
4. Heard learned advocate for the petitioner and learned advocate for the respondent.
5. It is submitted by learned advocate for the petitioner that document produced at Mark 11/1 i.e. mortgage deed was produced only for collateral purpose to prove the suit preferred by the plaintiff. It is further submitted that the trial court failed to appreciate the prayer made in the suit, which was in respect of recovery of amount lent to the defendant and for that purpose, the document Mark 11/1 was necessary to prove this suit preferred by the plaintiff. It is further submitted that the petitioner in the suit does not want to the documents as mortgage deed and claiming the property of the defendant, through the said document. It is further submitted that said document can be used for collateral purpose only and for the purpose of proving the admission made by the defendant in Page 3 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022 C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021 the document with regard to indebtedness of the defendant. That findings arrived by the trial court by dismissing the application Exh.12 could not be material at this juncture. It is further submitted that defendant has not denied the execution of the document, and therefore, order of the trial court refusing the document to exhibit was not legal and proper. It is further submitted that conclusion of the trial court of exhibiting such document was not legal and proper. In fact notary has executed the document signed by the parties in their presence. Hence, it is requested by learned advocate appearing for the petitioner to allow this application by exhibiting the document Mark 11/1 i.e. mortgage deed by quashing the impugned order. In support of her arguments, learned advocate for the petitioner has relied upon the judgment in the case of Sri K. Anjaneya Setty v. Sri K. H. Rangiah Setty reported in AIR 2002 Karnataka Page 387.
6. Learned advocate appearing for the respondent has vehemently opposed the arguments advanced by learned advocate appearing for the petitioner and submitted that the alleged document was required registration compulsorily under Section 117 of the Registration Act. It was further submitted that such document can not be executed by the notary and trial court has rightly considered the said application while Page 4 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022 C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021 rejecting the application Exh.12 to exhibit Mark 11/1 preferred by the petitioner. It is further submitted that as per the document, there was a transaction of mortgage and it was more than amount of Rs.23 Lakhs and no stamp duty was affixed by the plaintiff in the suit. That this document was prepared on a stamp paper of Rs.100/- (Rupees One Hundred only) and there was a clear breach of Section 49 of Indian Registration Act and Stamp Duty Act, therefore, also such a document cannot be exhibited. It is further submitted that the trial court has committed no illegality in refusing to accept the prayer for exhibiting the document produced by the plaintiff at Mark 11/1 and this Court may not interfere in the impugned order. Hence, it is requested by learned advocate for the respondent to dismiss the petition.
7. Having heard learned advocate for the respective parties and documents produced on record by the petitioner, it appears that petitioner being a plaintiff filed a suit against the respondent/defendant before the court of learned Senior Civil Judge, Ankleshwar, which was registered as Special Civil Suit No. 19 of 2016 for recovering an amount of Rs.24, 87,750/- As per the contention made in the plaint filed by the petitioner, it was averred that after getting the amount of Rs.23,05,000/- by the defendant from the petitioner, one mortgage deed was Page 5 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022 C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021 executed before the Notary on 13.04.2015 wherein amount received by the defendant was clearly mentioned. It appears that at the time of filing suit by the plaintiff, three documents were produced by the plaintiff i.e. mortgage deed, notice issued by the plaintiff through his advocate and acknowledgment slip issued by the Postal Department. By filing the separate application Exh.12 the plaintiff requested to exhibit these three documents to prove the contents made in the suit.
8. Learned Trial Court accepted the prayer in part by giving exhibit of two documents produced at Mark 11/2 and 11/3 with a rider to prove contents of the document and refuse to exhibit the document produced at Mark 11/1 observing that this document can be used only for collateral purpose and there was breach under Section 49 of the Indian Registration Act, and therefore, this document cannot be accepted in the evidence. He has observed that as per Section 8 of the Notary Act, notary is not authorized to register such kind of the document. It is a clear case of the petitioner that the plaintiff does not want to press in service the document as mortgage deed and claiming the property of the defendant through the document. It is further submitted that said document can be used for the collateral purpose only and to prove the admission Page 6 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022 C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021 by the defendant in the document. It appears that execution of the document was never denied by the defendant. Observation made by learned Trial Court of complusory registration at this stage would not be required as well as breach of the Section 49 of the Indian Registration Act.
9. Hon'ble High court of Karnataka in the case of Sri K. Anjaneya Setty v. Sri K. H. Rangiah Setty reported in AIR 2002 Karnataka Page 387 has dealt such issue and observed that when an objection would be raised for marking of the document, the court should record the objections, and thereafter permit the document to be marked subject to objections and permit the parties to put questions to the lawyers at the time of argument for what purpose they are relying on the said document. In Paragraph No.27 and 30, following observation was made by the Hon'ble High Court:
"27. Therefore, having regard to the past experience, the difficulties experienced in following the settled practice and in view of the aforesaid Supreme Court judgment setting out the procedure to be followed, the proper course to be adopted in my view would be this. When an objection is raised for marking of a document, the Court should record the objections and thereafter permit the document to be marked subject to objections. Thereafter, the parties may be allowed to cross-examine the witnesses on the basis of the said document. At the end of the trial while hearing the arguments on the main, arguments regarding admissibility of the document also be heard. If the Court upholds the objections it could exclude the Page 7 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022 C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021 said document and the oral evidence led in respect of the said document from consideration. If the said objection is overruled then the Court would decide the case on merits by taking note of the said document and the oral evidence in respect of the said document on record. In appeal the Appellate Court would again go into the aforesaid questions and pronounce its judgment on merits. If ultimately the document is held to be inadmissible and the oral evidence recorded in respect of the said document has to be excluded, it could be said so much time of the Court in recording the evidence was wasted. When compared to the time taken to hear the arguments regarding objection and the orders passed thereon and in case the matter is taken up in revision the time spent therein, in appeal if that objection is taken and if that objection is overruled and the matter has to be remanded, the time so spent in recording evidence would be negligible and such a procedure could advance the cause of justice. It also cannot be forgotten that the parties to the litigation will be totally innocent about these procedural wrangles and they will never be able to understand why the document is not marked or why the matter is remanded, why without finally deciding the case on merits the case is being tossed from one Court to another. Therefore, though it is settled practice that when any objection is raised regarding marking of a document it has to be heard and decided at that stage itself, a time has come to recast or remould the procedure, as suggested by the Supreme Court which would be a better substitute for the existing one, which would help in acceleration of the trial, except of course regarding objection relating to deficiency of stamp duty.
30. Though Section 49 of the Registration Act prohibits receiving as evidence the documents requiring registration under Section 17 which are compulsorily registerable the proviso to the said section provides for receiving such documents in the circumstances narrated therein. Therefore, it is clear there is no total prohibition for Page 8 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022 C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021 receiving unregistered documents in evidence and it is settled law that an unregistered partition deed could be received in evidence to prove any collateral transaction. Therefore, even though an unregistered document is marked that in no way affects the interest of the parties. Mere marking of the document does not take away the right of the opposite party to contend that such a document cannot be relied upon as it is not registered. Similarly, when the law declares for collateral purposes an unregistered document could be looked into it makes clear that such a document could be marked. Under these circumstances, the proper course for the Courts would be to mark such documents, subject to objections, permit the parties to adduce evidence, instead of putting questions to the lawyers at the time of argument to state for what purpose they are relying on the said document. Thereafter consider the respective contentions at the time of final hearing and then decide whether the said document could be looked into for collateral purposes and whether non-registration of the said document has made it inadmissible in evidence. Therefore, the approach of the Court below cannot be sustained."
10. Under the circumstances, considering the peculiar facts of the case that plaintiff wanted to use the document Mark 11/1 as collateral purpose only and not for any other purpose the document produced at Mark 11/1 may be given tentative exhibit subject to prove the contents by the plaintiff of this document. Keeping open all the contentions of both the parties, the impugned order passed by the trial court is hereby set aside.
11. The Court below is directed to exhibit the said document Mark 11/1 after noting the objection of the defendant and to Page 9 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022 C/SCA/4233/2018 JUDGMENT DATED: 12/10/2021 consider such objections on its merits without being influenced either by its earlier or by this order while considering the merits of the case.
12. With this observation and direction, present petition is hereby allowed. Rule is made absolute to the aforesaid extent.
(B.N. KARIA, J) SUYASH Page 10 of 10 Downloaded on : Sun Jan 16 23:31:13 IST 2022