Andhra HC (Pre-Telangana)
Isra Fatima vs Bismillah Begum And Anr. on 6 September, 2002
Equivalent citations: 2002(5)ALD660, 2006(4)ALT216
Author: G. Rohini
Bench: G. Rohini
ORDER G. Rohini, J.
1. This civil revision petition is directed against the order, dated 10-9-2001 in IA No. 1037 of 2001 in OS No.451 of 1996 on the file of the Court of the VII Junior Civil Judge, City Civil Court. Hyderabad.
2. The Plaintiff, who is the petitioner in IA No. 1037 of 2001, is the revision petitioner. His case is that he filed the main suit for injunction in respect of the suit schedule property, and that the same was contested by the defendants, who are the respondents herein. During the course of the evidence of the defendants, 1st defendant examined herself as DW1, and through him an agreement of sale was marked as Ex. B2. Subsequently, the plaintiff filed IA No.1037 of 2001 under Section 151 CPC to de-exhibit the document marked as Ex.B2 on the ground that it was not sufficiently stamped. In, the affidavit filed in support of the said application, it is stated that the documents in question being an agreement of sale coupled with delivery of possession should be on a stamp paper worth the value of the consideration mentioned in the agreement, and registration of such document is mandatory. It is contended that Ex.B2 was not sufficiently stamped and also not registered. However, the said fact was not brought to the notice of the Court, and consequently marking of the said document is totally unlawful and illegal. Accordingly, the plaintiff sought to de-exhibit the said document. The defendants opposed the said application. In the counter they denied the allegations made by the plaintiff and pleaded for dismissal of the petition.
3. The Court below, on consideration of the rival contentions, by order, dated 10-9-2001, dismissed the application by the following order:
"Heard both sides and perused the petition affidavit and the document Ex.B2. Admittedly the agreement of sale was executed prior to 1995 on a Rs.50/- stamp. As such no stamp duty is required to be paid on the sale consideration by them and no registration is required. Moreover, in a suit for injunction filed by the plaintiff/petitioner the document marked on defendants side an agreement of sale may incidentally be gone through and it does not form basis to consider the title.
Hence, petition is dismissed. No costs.
4. Questioning the correctness of the said order, plaintiff as come up with the present civil revision petition.
5. Heard the learned Counsel for the petitioner. Though notice was served and the matter underwent several adjournments, there is no representation for the respondents.
6. Learned Counsel for the petitioner contended that the conclusion of the Court below that Ex. B2 does not require registration and that no stamp duty is required to be paid on the sale consideration mentioned in it is erroneous. According to the learned Counsel, Ex. B2 requires stamp duty on the consideration mentioned thereunder and it also requires registration and therefore, the Court below ought to have rejected it holding that the same is inadmissible in evidence.
7. Admittedly, petitioner-plaintiff failed to raise any objection at the time of marking the document on behalf of the defendant and consequently, the document in question was marked as Ex. B2. The material on record shows that the 1st defendant was examined as DW1 and Ex. B2 was marked through her on 2-8-2001. Thereafter she was cross-examined on 13-8-2001, 19-10-2001 and 27-11-2001. It appears that during the cross-examination of DW1, the application in question was filed on 3-9-2001 under Section 151 of Code of Civil Procedure to de-exhibit Ex.B1.
8. It is settled principle of law that once a document is admitted in evidence without objection, there cannot be any challenge as to its admissibility subsequently. In this context, it is necessary to extract Section 36 of the Indian Stamp Act, 1899, which runs as follows:
"36. 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 61 be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped."
9. Explaining the scope of Section 36 of the Stamp Act. The Supreme Court in Javer Chand v. Pukhraj Surana, , held as follows:
....Where a question as to the admissibility of a documents 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, the matter is closed. Section 35 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.............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 examination and cross-examination of the witnesses, Section 36 of the Stamp 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. 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."
10. In P.C. Purushothama v. S. Perumal, , the Supreme Court while considering a similar question held that it is not open to a party to object to the admissibility of documents, which are marked as exhibits without any objection from such party. It is further observed that once a document is properly admitted, the contents of that document are also admitted in evidence though those contents may not be conclusive evidence.
11. Similar view has been expressed by this Court in L. Sambasiva Rao v. Balakotaiah, , in the said case a small cause suit was filed on the basis of a promissory note which was not sufficiently stamped. No objection was taken by the Office and the husband of the plaintiff went into the witness box as PW1 and the promissory note was marked as an exhibit during the course of his examination in chief without any objection. It was duly endorsed by the Presiding Officer as required by the Code of Civil Procedure. Thus it became an exhibit and part of the record. Thereafter during the course of examination of PW1, the insufficiency of the stamp on the promissory note was noticed and then an objection was raised as to the maintainability of the suit basing on such promissory note. The lower Court found that the 1st defendant did in fact receive the consideration and held that Section 35 was only a bar to the admissibility of the unstamped or insufficiently stamped document and when it was admitted in evidence it cannot after wards be withdrawn. Consequently the suit was decreed. On a revision by the 2nd defendant this Court after referring to Section 36 of the Stamp Act held that in view of undoubted fact that the promissory note had been admitted in evidence, no objection could be raised at any stage of the suit that it was not duly stamped. It is also held that since the promissory note had already become part of the record as one of the exhibits, the lower Court is right in decreeing the suit when it came to the conclusion that the promissory note was supported by consideration.
12. In view of the ratio laid down in the above decisions, the document in question which was already admitted in evidence and marked as Ex. B2 on behalf of the defendant cannot be rejected on the ground that it is not properly stamped. The application filed of the plaintiff to de-exhibit the document is misconceived. The Court below has rightly rejected IA No.1037 of 2001 purported to have been field under Section 151 of Code of Civil Procedure.
13. Hence, I do not find any infirmity in the order under revision. The order cannot be said to be vitiated by any illegality or material irregularity in exercise of jurisdiction vested under law.
14. However, the learned Counsel relied upon a Judgment of the Orissa High Court reported in Haladhar Mohapatra and Anr. v. Sova Dibya and Ors., and contended that even if the document is admitted into evidence without objection the Court can give a finding that the document though admitted is legally inadmissible. In view of the ratio laid down by the Supreme Court in Javer Chand v. Pukhraj Surana, I am unable to agree with the contention of the learned Counsel and I respectfully disagree with the view expressed by the Orissa High Court in Haladhar Mohapatra and Anr. v. Sova Dibya and Ors.