Andhra HC (Pre-Telangana)
A.P. Laly vs Gurram Rama Rao on 19 September, 2017
Author: A.Ramalingeswara Rao
Bench: A.Ramalingeswara Rao
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO
Civil Revision Petition No. 1873 of 2017
19-09-2017
A.P. Laly Petitioner
Gurram Rama Rao Respondent
Counsel for the Petitioner: Sri Venkateswarlu Chakkilam
Counsel for the Respondent:Sri M.R.S. Srinivas
<Gist :
>Head Note :
? Cases referred
1.1996(1) ALT 917 (FB)
2.AIR 1956 SC 12
3. AIR 1960 AP 155
4. AIR 1961 SC 1655
5. AIR 1972 SC 608
6. 1997(5) ALT 628
7. 2002(5) ALD 660
8. 2004(2) AndhWR 189
9. (2006) 11 SCC 331
10. 2016(3) ALD 235
11. 2016(2) ALT 321
12. AIR 1916 PC 27
13. (1955) 1 Mad LJ 457
14. AIR 1956 Mad 250
15. AIR 1962 AP 398
16. AIR 1966 Allahabad 392 (FB)
17. (2003) 8 SCC 752
18. 2017(5) ALD 228
HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Civil Revision Petition No. 1873 of 2017
Order:
Heard learned counsel for the petitioner and learned counsel for
the respondent.
The plaintiff is the petitioner herein. She filed O.S.No.6 of 2014 on
the file of VI Additional District Judge, Markapur for recovery of an
amount of Rs.18,92,000/- from the defendant. The suit was filed on the
basis of a hand letter executed on 14.02.2011. The evidence of the
parties was completed. During the course of evidence of PW.1, the said
hand letter was marked as Ex.A1 and was treated as an agreement under
Article 6(A) of Schedule I(A) of the Indian Stamp Act (for short the Act).
PW.1 was cross-examined. When the case was posted for arguments on
defendants side, the defendant filed I.A.No.490 of 2016 stating that the
said document is not an agreement but it is a bond within the meaning of
Section 2(5)(b) of the Act as laid down by the Full Bench of this Court in
B. Bhavannarayana v. Kommuru Vullakki Cloth Merchant Firm ,
and it is liable to be stamped under Article 13 of Schedule I(A) of the Act
and not under Article 6(A) (iv) of Schedule I(A) of the Act. It was stated
that it happened by inadvertence. Though the said document was marked
as exhibit, it does not amount to admission and he has got a right to
challenge the admissibility of the said document. Accordingly, he sought
to de-exhibit the said document.
A counter was filed stating that the said application was filed only
to drag on the matter. It is further stated that the plaintiff paid an
amount of Rs.1100/- towards stamp duty and penalty on the above said
hand letter at the time of filing of the suit on 25.03.2014 and the same
was endorsed on the back side of the hand letter.
On the above averments, the trial Court framed the following
points for determination:
1. What is the nature of the document marked under
Ex.A1?
2. Whether the document marked as Ex.A1 can be de-
exhibited, if so to what result?
The trial Court, by its order dated 17.02.2017, held that the
plaintiff has to pay the stamp duty and penalty and, accordingly, allowed
the application in part directing the plaintiff to pay the remaining stamp
duty and penalty under Article 13 of Schedule IA of the Act after
deducting the stamp duty already paid under Article 6A(iv) of Schedule
I(A) of the Act with the following observations:
11. In the instant case on hand, for better appreciation,
this Court reiterating the recitals of Ex.A1 as it is:
MAHARAJASRI A.P LALY, W/O BUSHAN
GAARIKI MARKAPUR GRAMAMU GURRAM RAMA
RAO, S/O SUBBAIAH GAARU WRAASI/WRAINCHI
ICHINA CHEUTTARAM LOGA TEECHAVALASINA
BAAKI VUNDAGA, E DINAMU NAA
AVASARA/VYAPARA NIMITTAMU NEETAHAVUNA
NEENU APPUGA TEESUKUNNA ROKKAM
RS.11,00,000/- LU AKSHARALA ELEVEN LAKHS ONLY
ECCHINARU GAANA MUTTINADI. INDUKU VADDI
NELA 1 KI 100KI RS.2-00 PRAKARAM SAALUSARI
COMPOUND VADDITO MEEKU EVVAGALAVAADANU.
INDUKU AYYE PENALTY KARCHULU NEENE
BARINCHAGALAVADANU
RS.11,00,000/- G. RAMA RAO
12. In the instant case on hand, the document in
question would show that it consists of two parts and is not
attested. The first part reads as follows E DINAMU NAA
AVASARA/VYAPARA NIMITTAMU NEETAHAVUNA NEENU APPUGA
TEESUKUNNA ROKKAM RS.11,00,000/- LU AKSHARALA ELEVEN
LAKHS ONLY ECCHINARU GAANA MUTTINADI. The second part
reads as follows INDUKU VADDI NELA 1 KI 100KI
RS.2-00 PRAKARAM SAALUSARI COMPOUND VADDITO MEEKU
EVVAGALAVAADANU. INDUKU AYYE PENALTY KARCHULU
NEENE BARINCHAGALAVADANU.
13. The maker of document has obliged himself to pay
money with interest to the person named at the top of
document. As per the decision referred supra, it is therefore, to
be seen the document marked as Ex.A1 can be said to be a
bond. Now it has to be decided what is the stamp duty and
penalty collected for a bond. During the course of evidence of
PW.1 the said document i.e., Ex.A1 was treated as an agreement
under Art.6(A) of Schedule I(A) of the Indian Stamp Act and
marked as Ex.A1. In fact the said document marked as Ex.A1 is
a bond within the meaning of Sec.2(5) of the Indian Stamp Act
as laid down by the full bench decision of Honble A.P. High Court
in 1996(1) ALT 917(F.B) and not an agreement and it is liable to
be stamped under Article 13 of Schedule I(A) of Indian Stamp
Act and not under Art.6(A)(iv) of Schedule I(A) of the Stamp Act.
Therefore, this Court is of considered view that
respondent/plaintiff has to pay the stamp duty and penalty under
Article 13 of Schedule I(A) of Indian Stamp Act for Ex.A1.
Learned counsel for the petitioner did not contest the finding
recorded by the trial Court that Ex.A1 is not an agreement and it is a
bond, but strenuously argued the maintainability of the application for de-
exhibiting the document which was already admitted in evidence. He
relied on the decisions reported in V.E.A. Annamalai Chettiar v.
S.V.V.S. Veerappa Chettir , Sree Rama Varaprasada Rice Mill v.
Takurdas Topandas , Javer Chand v. Pukhraj Surana , P.C.
Purushothama Reddiar v. S. Perumal , Dokka Joganna v.
Upadrasta Chayadevi , Isra Fatima v. Bismillah Begum , Sunkari
Srujana v. Chikkala Bhavani Shankar and Shyamal Kumar Roy v.
Sushil Kumar Agarwal , in support of his submissions.
Learned counsel for the respondent submitted that the document is
inadmissible in evidence and an appropriate application can be filed under
Order 13 Rule 3 of CPC and relied on the decisions reported in Syed
Yousuf Ali v. Mohd. Yousuf and Srinivasa Builders v. A. Janga
Reddy (Died) per LRs , the latter of which was decided by me.
The decision in Syed Yousuf Alis case (supra) was decided on
05.02.2016, whereas Srinivasa Builderss case (supra) was decided by
me on 08.02.2016. These two decisions agree on the point of
maintainability of an application under Order 13 Rule 3 CPC, even after a
document was admitted in evidence. But, after hearing the learned
counsel for the petitioner, I was attracted by his arguments and relooked
the matter once again from the perspective of the arguments advanced by
the learned counsel for the petitioner. Though, they are attractive on
their face, on a deeper study, it is noticed that the decisions cited by him
and the argument advanced by him based on Section 36 of the Act are
not absolute principles applicable to all cases. Those decisions were
rendered without considering the effect of the principle laid down under
Order 13 Rule 3 CPC.
The point involved in the present case is whether it is open to a
party who raised the objection or not with regard to admissibility of
document to file a petition for de-exhibition of the said document at a
later stage either in the same proceedings or at appellate stage.
Order 13 deals with production, impounding and return of
documents. Rules 1 and 2 provide for production of documents and effect
of non-production. Rules 4 and 5 deal with endorsements on documents
and Rules 3 and 6 to 9 contain provisions relating to return of documents,
impounding of documents and rejection of documents. In the present
case we are concerned with admission of a document and rejection
thereof. As stated above, Rule 4 deals with endorsements on documents
admitted in evidence and Rule 3 deals with rejection of irrelevant or
inadmissible documents and they read as follows:
4. Endorsements on documents admitted in
evidence.-(1) Subject to the provisions of the next following
sub-rule, there shall be endorsed on every document which has
been admitted in evidence in the suit the following particulars,
namely:-
(a) the number and title of the suit,
(b) the name of the person producing the documents,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted,
and the endorsement shall be signed or initialed by the Judge.
(2) Where a document so admitted is an entry in a book,
account or record, and a copy thereof has been substituted for
the original under the next following rule, the particulars aforesaid
shall be endorsed on the copy and the endorsement thereon shall
be signed or initialed by the Judge.
3. Rejection of irrelevant or inadmissible
documents.- 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.
Rule 6 provides for an endorsement on documents rejected as
inadmissible in evidence. Rule 7 provides that every document which was
admitted in evidence shall form part of record of the suit. Rule 8
empowers the Court to impound any document. Now comes Rule 3 which
deals with rejection of inadmissible or irrelevant documents.
At this stage it is also necessary to extract Sections 35 and 36 of
the Act. They read as under.
35. 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:
Provided that:
(a) Any such instrument shall be admitted in evidence on
payment of the duty with which the same is chargeable or, in
the case of an instrument insufficiently stamped, of the amount
required to make up such duty, together with a penalty of
fifteen rupees or, when ten times the amount of the proper
duty or deficient portion thereof exceeds fifteen rupees of a
sum equal to ten times such duty or portion;
(b) Where any person from whom a stamped receipt could
have been demanded, has given an unstamped receipt and such
receipt, if stamped, would be admissible in evidence against him
then such receipt shall be admitted in evidence against him, on
payment of a penalty of three rupee by the person tendering it;
(c) Where a contract or agreement of any kind is effected by
correspondence consisting of two or more letters and any one
of the letters bears the proper stamp the contract or agreement
shall be deemed to be duly stamped;
(d) Nothing herein contained shall prevent the admission of any
instrument in evidence in any proceeding in a Criminal Court,
other than a proceeding under Chapter XII or Chapter XXXVI of
the Code of Criminal Procedure, 1898;
[Now Chapter IX and XD of Cr.P.C., 1973;]
(e) Nothing herein contained shall prevent the admission of any
instrument in any Court when such instrument has been
executed by or on behalf of the Government or where it bears
the certificate of the Collector as provided by Section 32 or any
other provision of this Act.
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.
In Sadik Hussain Khan v. Hashim Ali Khan , the Privy Council
deprecated the practice of not making endorsement on the document
exhibited in evidence and refused to read or permit to be used any
document which was not endorsed in the manner required under the Code
of Civil Procedure. The relevant observations are as follows:
Finally, their Lordships feel bound to criticize adversely a
practice followed in these two cases, which is as illegal as it is
slovenly and embarrassing. By the 141st section of C.P.C.,
1877, repeated in C.P.C. 1882 and practically re-enacted in
Order XIII, Rule 4, of the Rules and Orders passed under the
Code of Civil Procedure of 1908, it is provided that a presiding
Judge shall endorse with his own hand a statement that it (i.e. a
document proved or admitted in evidence) was proved against
or admitted by the person against whom it was used. That
course was in many instances not followed at the hearing of
these two cases, with the result that embarrassing and
perplexing controversies arose on the hearing of these appeals
as to whether or not certain documents, prints of which were
bound up in the record, had been given in evidence. There is no
possible excuse for the neglect, in this manner, of the duty
imposed by the Statutes, since, so long ago as the 3rd March,
1884, a circular was addressed by the then Registrar of the Privy
Council to the Registrar of the High Court of Calcutta calling
attention to the requirements of the then existing law and the
necessity of observing them. A copy of this circular was sent
not only to the High Courts of Madras, Bombay and Allahabad,
but, in addition, to the Judicial Commissioner of Oudh and other
Judicial Commissioners. Their Lordships, with a view of insisting
on the observance of the wholesome provisions of these
Statutes, will, in order to prevent injustice, be obliged in future
on the hearing of Indian appeals to refuse to read or permit to
be used any document not endorsed in the manner required.
His Lordship P.V. Rajamannar, the then Chief Justice of Madras
High Court in A. Devasikamani Goundar v. M.A. Andamuthu
Goundar observed that if an objection is taken to the admissibility of a
document for want of stamp and registration, the Court should decide
both the questions at once. If the Court finds that the document is
unregistered, when it requires registration, it has to reject the document
itself. It cannot ask the document to be stamped first and thereafter
decide whether it would require registration.
This gives guidance to the Courts dealing with the documents
which require payment of proper stamp duty as well as registration fee.
In Kuppammal v. Mu.Ve.Pethanna Chetty the Madras High
Court considered the objection relating to the admissibility of a document
subsequent to endorsement and the effect of stamping endorsement on
document. The said decision has a bearing in the present case and hence
it is necessary to notice the facts in the said case. The suit was filed for
recovery of money on the basis of pronote executed by the defendant.
The stamp portion of the pronote was torn. The plaintiff stated that she
entrusted the pronote to her brother for safe custody and when the same
was handed over to her prior to filing the suit she found that a portion of
the pronote bearing the signature of the defendant on the stamps was
torn out. The defence of the defendant was that the suit pronote was
executed nominally and at a settlement effected between the parties the
pronote was discharged and the stamp was torn in the presence of the
mediators, but was left with the defendant (sic. plaintiff) in connection
with the settlement of the dispute with a third party. An issue was
framed with regard to maintainability of the suit when the pronote did
not bear the revenue stamps. The trial Court held that the pronote was
insufficiently stamped and it cannot be used in evidence for any purpose
and accordingly dismissed the suit. The appeal was dismissed. The
Second Appeal was preferred to the High Court. It was contended before
the High Court that the pronote was admitted under order 13 Rule 4 CPC
and was marked as Ex.A1 and when it was so admitted and marked as
exhibit its admissibility could not be reopened or questioned on the
ground that the document not having been duly stamped having regard to
the provisions of Section 36 of the Act. The case in Alimane Sahiba v.
Subbarayudu (AIR 1932 Mad 693) was relied on. In those
circumstances, the High Court considered the meaning of Admitted in
evidence occurring in Section 36 of the Act. It considered the
observations of the Division Bench of the same High Court in Venkanna
v. Parasuram (AIR 1929 Mad 522), wherein it was held as follows:
If a trial Judge had not considered the admissibility of a
document proved before him the mere endorsement thereon
under Order 13, Rule 4 C.P.C., does not preclude him from
considering its admissibility at a later stage of the case.
The Division Bench followed the views taken by the Bombay, Punjab and
Nagpur Courts in Chunilal v. Mula Bai (6 Ind Cas 903 (Bom),
Sundardas v. Peoples Bank of India Ltd., (16 Ind Cas 834 (Lah)
and Sitaram v. Thakurdas (AIR 1919 Nag 141). The learned single
Judge considered various decisions of Madras High Court on the point and
ultimately held that the mere fact that the endorsement on the document
as required under Order 13 Rule 4 CPC has been made should not in every
case be considered sufficient to hold that the document has been
admitted. In cases where no objection has been raised as to the
admissibility on the ground of insufficiency of stamps and an endorsement
of admission under Order 13, Rule 4 is made and objection to such
admissibility is not taken even at any stage of the trial of the suit, it will
not be open to any party to raise the objection in appeal, before any
other forum to which the matter might be taken up. He also held that by
mere mechanical act of stamping the endorsement under Order 13 Rule 4
the Court has applied its mind as to the admissibility of the document. So
long as the objection has not been considered by the Court, the
endorsement under Order 13 Rule 4 could be considered only to be a
mechanical act and not the result of the exercise of the judicial mind as to
its admissibility. He further held as follows:
Much significance cannot therefore be given to the
procedural provision under Order 13, Rule 4, which prescribes the
method to be followed if a document is admitted in evidence by
having the same endorsed with the particulars required under the
rule. The observance of the procedure under Order 13, Rule 4
presupposes an admission of the document in evidence, which
again should be based on such admission being directed to be
made by Court. But if the Court had not applied its mind but
allowed it to be endorsed under Order 13, Rule 4 that would not
however deprive the Court of the right of rejecting it if, on the
consideration of any objection raised as to its admissibility, the
Court comes to the conclusion that the document is
inadmissible.
The same phrase Admitted in evidence occurring in Section 36 of
the Act was considered by a learned single Judge of this Court in
Mantrala Simhadri v. Palli Varalakshmi . The learned single Judge
held that the question as to whether a document has been admitted or
not depends upon the facts of each case. He did not decide the true
meaning of the words Admitted in evidence, but on the facts of that
case held that no objection should be taken with regard to admissibility of
a document at a subsequent stage of the proceeding when no objection
was taken earlier.
A Full Bench of Allahabad High Court in Jageshar Naik v.
Collector of Jaunpur by majority held that mere endorsement on
Instrument is sufficient and no order is necessary within the meaning of
Section 61 of the Act. The majority of the Full Bench differed from the
contra view taken in Emperor v. Gian Chand (AIR 1946 Lah 265)
and Ramchand v. Moti Thad (AIR 1962 All 353) and ultimately held
as follows:
Then even if an express order is required, an express
order admitting an instrument in evidence is enough even though
it does not recite the fact that the instrument is duly stamped (or
does not require to be stamped or is admissible on payment of a
certain sum of money by way of deficit and penalty). "Order"
used in the Code of Civil Procedure is what is known as formal
order and the definition of "order" contained in Section 2(14) of
the Code of Civil Procedure does not apply to the word "order"
used in the Stamp Act. Section 2 of the Code makes it clear that
the definitions contained in it are merely for the purposes of the
Code. There is a provision in the Code, the Evidence Act and
the Stamp Act for an order, as defined in Section 2(14) of the
Code, admitting an instrument in evidence and in practice such an
order is not passed. An endorsement on an instrument is an
order within the meaning of Section 61 as pointed out by Iqbal
Ahmad and Bajpai, JJ. in Lodhi, AIR 1939 All 588. The view taken
by N.U. Beg and S.D. Singh, JJ. in this regard is in conflict with
the view taken in the case of Lodhi, AIR 1939 All 588. As regards
the rule of strict interpretation, I have already given reasons for
not applying the rule of strict interpretation of a taxing statute to
the interpretation of the words, "makes any order admitting an
instrument in evidence as duly stamped". A trial Court's order can
be taken into consideration by a superior Court even though it
does not contain reasons; see Milkhiram (India) Private Ltd. v.
Chamanlal Bros., AIR 1965 SC 1698. I think the law laid down in
Ramchand, 1962 All LJ 435: (AIR 1962 All 353), is not correct.
But the Bench did not disfavour the view that there should be conscious
decision with regard to admission of a document.
Now, in the present case we are concerned with the document
which was not properly stamped, but marked as an exhibit. There is no
evidence on record to show whether the said document was properly
admitted in evidence. Even if it is otherwise admitted in evidence, the
point still remains whether such a document can be asked to be de-
exhibited by the party objecting to it as happened in this case.
In R.V.E. Venkatachala Gounder v. Arulmigu
Viswesaraswami & V.P. Temple , the law laid down was that the
objections as to admissibility of documents in evidence falls in two cases
(i) an objection that the document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the objection does not dispute
the admissibility of the document in evidence but is directed towards the
mode of proof alleging the same to be irregular or insufficient. It was
held, that in the first case, the objection can be raised even at a later
stage or even in appeal or revision. But, in the latter case, the objection
should be taken when the evidence is tendered and when once the
document is admitted in evidence and marked as an exhibit, the objection
that it should not have been admitted in evidence or that the mode
adopted for proving the document is irregular cannot be allowed to be
raised at any stage subsequent to the marking of the document as an
exhibit. The case of insufficiently stamped document falls under category
(i) as such a document cannot be admitted in evidence under Section 35
of the Act. In spite of the said pronouncement of the Honble Supreme
Court, learned counsel for the petitioner in the present case drew the
attention of this Court to the above decisions and submitted that when
the parties went ahead with the process of evidence on the basis of an
exhibited document it is not open to the defendant to file the present
application seeking to de-exhibit the document at this stage and it is
contrary to Section 36 of the Act.
The case of V.E.A. Annamalai Chettiar (supra) does not explain
the position properly, but merely states that an objection with regard to
improperly stamped document cannot be raised at any stage of the
proceedings in view of the bar contained under Section 36 of the Act, as
no such objection was taken initially.
In Sree Rama Varaprasada Rice Mills case (supra) also,
reliance was placed on Section 36 of the Act and held that the admission
of the document becomes final and shall not be called in question at a
later stage. The observations are as follows:
23..
This provision does not take away the finality provided for in
Section 36 of the Stamp Act as to the admission of instruments
by the Trial Court. In Venkata Reddi v. Hussain Setti (AIR
1934 Mad 383), a bench of the Madras High Court has held
that when once a document has been admitted in evidence after
levying penalty on the foot of its being a bond, even though it
may be a debatable point, the matter must be deemed to have
been concluded and the admission of the instrument by the trial
court in evidence cannot be questioned.
It was urged in that case by the learned Advocate General that
Section 36 would not apply to cases where a document in
question forms the foundation of the suit. That argument was, if
I may say so with great respect, rightly rejected. To the similar
effect are the decisions in Ramaswami v. Ramas-wami (ILR
5 Mad 220), Venkatrama Aiyar v. Chella Pillai (AIR 1921
Mad 413) and Venkateswara Iyer v. Ramanatha
Dheekshitar (AIR 1929 Mad 622). Following the said
authorities, I hold that inasmuch these Instruments have been
admitted in evidence, it is no longer open to the appellants to
raise the question as to the insufficiency of the stamp duty paid
on the instruments.
A four Judge Bench of the Honble Supreme Court in Javer
Chands case (supra) also held to the same effect, but the same decision
was based on the endorsement made on the document as admitted in
evidence under the signature of the Court. The observations of the
Supreme Court are as follows:
That section is categorical in its terms that when a
document has once been admitted in evidence, such admission
cannot be called in question at any stage of the suit or the
proceeding on the ground that the instrument had not been duly
stamped. The only exception recognized by the section is the
class of cases contemplated by S.61 which is not material to the
present controversy. Section 36 does not admit of other
exceptions. 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.
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. The record in this case discloses the fact that the hundis
were marked as Exs.P1 and P2 and bore the endorsement
'admitted in evidence' under the signature of the Court. 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. 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 their witnesses, S.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.
(underlining
mine)
The underlined observations are crucial and important as they
indicate that if a document was inadvertently admitted without the Court
applying its mind about the admissibility, such admission of the document
can be challenged.
The decision in P.C. Purushothama Reddiars case (supra) is
not relevant.
In Dokka Jogannas case (supra), a learned single Judge of this
Court, by relying on the above judgments observed that it is necessary to
decide the admissibility of the document in evidence at the stage of
raising objection itself and cannot be left open to be decided at a later
stage.
In Isra Fatimas case (supra), Javer Chands case (supra) was
followed and underlined portion in Javer Chands case (supra) was not
considered nor an attempt was made to examine the scope of Section 36
of the Act in the light of Rule 3 of Order 13 CPC.
In Sunkari Srujanas case (supra), the said Isra Fatimas case
(supra) was cited to be decision of the Supreme Court which in fact was
not of the Supreme Court judgment.
In Shyamal Kumar Roys case (supra) it was held that when no
objection was taken for marking a document as an exhibit he cannot at a
later stage raise an objection. In the said case also it was held that there
should be a decision on the admissibility of the document.
Thus, in the absence of consideration of application of Rule 3 of
Order 13 to the cases of improperly admitted documents, the arguments
advanced on the basis of such decisions is of no avail. I am of the opinion
that the decisions of this Court in Syed Yousuf Ali (supra) and
Srinivasa Builders (supra) do not require any elaboration or
clarification. It is also relevant to notice that a learned single Judge of
this Court, who rendered the decision in Syed Yousuf Alis case (supra),
rendered another decision in S. Mohan Krishna v. V.
Varalakshmamma to the same effect. The Court has got right to
de-exhibit a document when its attention was drawn as to the
inadmissibility of the document, as it has got duty to decide the
admissibility of a document and eschew irrelevant and inadmissible
evidence. The Code of Civil Procedure deals with the procedure in dealing
with the suits, whereas the provisions of the Indian Stamp Act deal with
the provisions for collection of proper stamp duty on the documents.
When a document which was not properly stamped was admitted in
evidence and when the Courts attention was drawn, the objection of the
party under Section 36 of the Act pales into insignificance and the duty of
the Court comes to the forefront to decide with regard to admissibility of
such a document. It is for the Court to decide whether a particular
document is admissible or not. If it is inadmissible it can de-exhibit such
a document. It is the decision of the Court, but not that of the objector.
The role of the objector is only to bring it to the notice of the Court.
Even assuming that a Court decides to admit a document in evidence,
there is nothing in the Code of Civil Procedure prohibiting the Court from
recalling such an order.
In view of the above position, in the absence of any evidence as to
the availability of a decision of the trial Court with regard to document in
question as to its admission, the application as filed by the defendant is
maintainable and it is open to the plaintiff to pay the stamp duty and
penalty as per the Rules and make a request to admit the same in
evidence and it is for the Court to admit the document and mark the
same.
In view of the above legal position, the order under revision cannot
be held to be erroneous and the Civil Revision Petition is, accordingly,
dismissed. There shall be no order as to costs.
As a sequel thereto, the miscellaneous petitions, if any, pending in
this Civil Revision Petition shall stand closed.
__________________________
A.RAMALINGESWARA RAO, J
Date: 19th September 2017