Andhra HC (Pre-Telangana)
Doddapaneni Chennakesava Rao vs Nannapaneni Narendra And Anr. on 5 April, 2006
Equivalent citations: 2006(4)ALD263, 2006(4)ALT683
ORDER C.Y. Somayajulu, J.
1. Revision petitioner filed a suit against the respondents inter alia for a declaration and consequential Injunction restraining the respondents from interfering with his possession and enjoyment of the plaint schedule property and for recovery of Rs. 3,37,600/- paid by him under an agreement with the respondents, and filed petition seeking an injunction during the pendency of the suit restraining the respondents from interfering with the plaint schedule property, which was allowed by the trial Court. At the time of trial, if the suit, when the revision petitioner sought to ark the said agreement dated 10-10-2002, as an exhibit Counsel for the respondents objected to its marking on the ground that it is not properly stamped, and that objection was upheld by the order under revision.
2. The main contention of the learned Counsel for the revision petitioner is that since the agreement dated 10-10-2002 sought to be marked in the suit was already marked as an exhibit during interlocutory stage, in view of Section 36 of the Stamp Act (for short 'the Act') it should be deemed that it was already admitted in evidence, and so respondents cannot object to its marking at the time of trial of the suit. It is also his contention that in any event the said document may require to be stamped under Article 46A but not Article 46B of Schedule 1A to the Act.
3. The contention of the learned Counsel for the respondent is that the document dated 10-10-2002 sought to be marked by the revision petitioner in the suit is an agreement between the revision petitioner and respondents whereunder the 2nd respondent agreed to erect a building on the plaint schedule property which should be in complete confirmation with the plans, drawing and elevation and the material given in the specifications etc., and it is clear that revision petitioner was put in the possession of the plaint schedule property under the said agreement and so there are no grounds to interfere with the order under revision.
4. Since it is not necessary to give a finding on the nature of the document or under what Article of Schedule 1A of the Act the document falls for disposal of this revision, I do not wish to give a finding thereon. As per Section 6 of the Act if an instrument which falls within two or more of the Articles in the Schedule 1 or 1A of the Act it shall be chargeable with highest of the duties payable and so it is for the authority concerned to decide what is the proper stamp duty payable on the document dated 10-10-2002.
5. The point for consideration in this revision is whether the marking of a document in an interlocutory proceedings would be a bar for objecting its marking at the stage of trial of the suit invoking Section 36 of the Act.
6. In support of his contention that the bar under Section 36 of the Act would apply, the learned Counsel for the revision petitioner relied on the following decisions :
Palevala Suryanarayana v. Mosa Kamaraju in V.E.A. Annamalai Chettiar and Anr. v. S.V.V.S. Veerappa Chettiar and Ors. , Smt. Prabha Laxman Ghate v. Sub-Registrar and Collector of Stamps, Pune and Anr. , Pechitti Ramakrishna v. Nekkanti Venkata Manohara Rao and Ors. , Dula Dei and Ors. v. Jadi Bewa and Ors. and in Sardar Darshan Singh v. Sardar Ram Singh and Anr. .
7. In my considered opinion none of the above decisions are of help to decide the point for consideration in this petition because Palevala Suryanarayana's case (supra) relates to insufficiently stamped promissory note being admitted into evidence without being objected to by the other side. In VEA Annamalai Chettiar's case (supra) a document was admitted in evidence in lower Court during trial without being objected to on the ground of being insufficiently stamped, when its admission was challenged at the appellate stage it was held that question regarding sufficiency of the stamp when a document is already marked cannot be gone into at the appellate stage. Smt. Prabha Laxman Ghate's case (supra) has no application to the facts of the case because that case arose under Bombay Stamp Act as amended by Maharashtra Tax Laws (Levy, Second Amendment and Validation) Act (9 of 1997), the provisions of which are not in pari materia with the amendments made to the Act in this State to the Act. Moreover, in that case the agreement in question was entered into before the date of the coming into force of the amendment Act in that State. In Pechitti Ramakrishna's case (supra) the question was whether the agreement falls under Article 46A or 46B of Schedule 1A. Since I am not going to decide the question under which article of Schedule 1A the document in question would fall, the said decision is not relevant for deciding this revision. In Dula Dei's case (supra) it was held that if no objection to the admissibility of the document, on the ground of its being insufficiently stamped, was taken in the trial stage such objection cannot be taken at the appellate stage. Since question whether objection relating to sufficiency of stamp in respect of a document marked in the interlocutory stage can be taken at the time of trial when no such objection was taken at the interlocutor stage, was not considered in that case, the said decision is of no help to decide this revision.
8. The marking of a document during interlocutory proceedings is different from the marking of a document at the stage of trial. In fact, the Court is not expected to and does not mark documents in the interlocutory proceedings, because as per Rule 51 of the Civil Rules of Practice the deponent to the affidavit, who wishes to rely on a document, has to mark it as an exhibit, and those documents should contain a certificate in Form 16 made by the officer attesting the affidavit. Since all the documents marked during interlocutory proceedings may not be marked at the time of trial, and documents marked during interlocutory proceedings cannot be said to have been marked during the course of trial of the suit, and since the documents in the interlocutory stage, when not marked at the time of trial, cannot be taken into consideration for disposal of the suit, marking of documents during interlocutory proceedings, has nothing to do with the marking of documents during the course of trial. In fact, the point for consideration in this revision is not res integra because in Rajamanickam and three Ors. v. Elangovan and four Ors. 1998 (1) Mad. LW 443, it is held that marking a document in interlocutory proceedings is not admission of document during the course of trial and so objection regarding the document being insufficiently stamped can be taken at the stage of trial.
9. In view thereof, respondents have a right to object to the marking of a document on the ground that it is not properly stamped. Revision petitioner, if he so chooses, can file a petition before the trial Court to send the document to the Collector for determination of the proper stamp duty and penalty payable thereon.
10. For the above reasons, I find no merits in the revision and accordingly the revision is dismissed. No costs.