Andhra Pradesh High Court - Amravati
Muppalla Hanumantha Rao vs Mandava Bala on 20 September, 2019
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
HON'BLE THE ACTING CHIEF JUSTICE SRI C. PRAVEEN KUMAR
CIVIL REVISION PETITION No. 714 of 2019
ORDER:
1) The present Civil Revision Petition is filed by the petitioner/defendant No.1 under Article 227 of the Constitution of India aggrieved by the order dated 27.2.2019 passed in I.A.No.35 of 2019 in O.S.No.381 of 2016 on the file of the III Addl. Senior Civil Judge, Vijayawada, wherein and whereunder an application filed by the respondent/plaintiff under Order 13 Rule 3 of the Code of Civil Procedure to demark Ex.B-5 document dated 30.6.2011, was allowed.
2) The contention of the learned counsel for the respondent/plaintiff, who filed the above application, before the trial Court is that the defendant No.1 filed a document styled as "receipt" to be marked on his behalf, which was impounded vide I.A. No.484 of 2018 and sent to District Registrar. While forwarding the document, the Court gave a clear finding that it is not a mere receipt but a the document that conveys delivery of possession. It has to be treated as a deed of conveyance. But, despite the finding of the trial court in I.A. No.484 of 2018, the District Registrar has not collected the stamp duty and penalty and sent the document with an endorsement that, the stamp duty in respect of the said document is sufficient. But, however, without bringing the said fact to the notice of the court, the said document came to be marked as Ex.B5. Hence, the plaintiff contends that when the document was categorically 2 found to be a conveyance deed, the stamp duty has to be paid accordingly, without which, it cannot be received for want of deficit stamp duty. Hence, the document marked as Ex.B5 be demarked.
3) The petitioner/defendant opposed the petition stating that, the District Registrar alone is competent to decide the nature of the document, as such, the District Registrar, considering the document dated 30.6.2011, as a receipt, had endorsed that the stamp duty already paid was sufficient and that cannot be questioned by the respondent/plaintiff. Further, the said document marked as Ex.B5 being a receipt cannot be demarked. Further, the respondent/plaintiff, if aggrieved by the endorsement given by the District Registrar, shall take recourse in accordance with Section 34 of Stamp Act and prays to dismiss the petition.
4) The trial Court, having considered the arguments on either side held that unless the document is impounded and proper stamp duty is collected, it cannot be admitted as evidence. As such marking of the document as Ex.B5 needs to be demarked and accordingly allowed the I.A. demarking Ex.B5. Challenging the same, the present Revision came to be filed.
5) Learned counsel for the petitioner/defendant No.1 would submit that when the document was impounded and was found by the District Registrar himself that the said document was sufficiently stamped being a receipt and marked as Ex.B5, again the court cannot demark it merely because the document was 3 found to be conveyance deed by the court, as it is ultimately the District Registrar who shall decide the nature of document while collecting stamp duty.
6) On the other hand, the learned counsel for the respondent/plaintiff would contend that the recitals therein which shall govern the issue at the time of marking the document and not the finding of the District Registrar.
7) In view of the rival contentions, the issue that arise for consideration is; "Whether the document Ex.B-5 can be demarked as prayed for by the petitioner/defendant?"
8) As seen from the material on record, the main suit was filed for cancellation of the sale deed dated 08.09.2014 executed in favour of the 1st defendant by the 2nd defendant in pursuance of illegal and void sale agreement-cum-General Power of Attorney dated 09.06.2011 and for consequential permanent injunction restraining the defendants, their men, agents servants etc., from ever interfering with the peaceful possession and enjoyment of the plaintiff in the plaint schedule property. At the time of filing the written statement, the defendant filed Receipt dated 30.06.2011 which was alleged to be executed by Mandava Balamma i.e., plaintiff in favour of Atluri Ravikanth i.e., second defendant. But, the counsel for the plaintiff objected for the same on the ground of it being insufficiently stamped. As seen from the record the defendant filed I.A.No.484 of 2018 requesting the Court to send the receipt to the District Registrar for impounding. After perusing 4 the said receipt, the trial court categorically held that going by the recitals of the document, it evidences delivery of possession of the property and such document amounts to a conveyance deed and stamp duty has to be collected considering the document to be a conveyance deed. During the course of cross examination of D.W.1, it was brought to the notice of the court that the document was impounded and the respondent did not bring to the notice of the court while marking it. The trial court while passing the order opined that in spite of the finding of the court as the receipt dated 30.06.2011 to be a conveyance deed and stamp duty has to be collected, but the necessary stamp duty and penalty was not paid, as such the said document cannot be admitted as evidence and demarked the same.
9) In Athapuram Raghuramaiah and another v. Dyava Ramaiah1, this Court considered the scope of Section 36 of the Indian Stamp Act and Order XIII Rule 4 CPC for impounding documents and held that mere marking of a document or showing it to the witness would not amount to admissibility of document in evidence, after judicial consideration as to its admissibility, unless the endorsement made on the document at the time of marking contains a specific statement as to its admission in evidence and signed or initialed by the Judge as prescribed under Order 13 Rule 4 CPC, it cannot be said to be admitted. This Court further held that the words 'admitted in evidence' as appearing in Section 36 of the Indian Stamp Act mean admitted after judicial consideration of objections relating 1 2012(6) ALT 271 5 to its admissibility. Thus, there shall be a judicial determination of the question whether it can be admitted in evidence or not for want of stamp, on the day when the document was shown to the witnesses and marked. Merely because a document was marked or shown to the witness would not mean that the objection raised by the opposite party was rejected by judicial determination.
10) In Vemireddy Kota Reddy v. Vemi Reddy Prabhakar Reddy2, this Court held that the objection as to admissibility of the document has to be decided before assigning exhibit number. When the documents were marked as exhibits in the absence of defendant or his counsel and without considering the nature of the document by the Court, assigning exhibit number cannot be said to be admitted in evidence and interdict contained in Section 36 would not come to the aid of the party in whose evidence the document was marked as exhibit without any judicial determination, totally debarring the adversary to challenge the admissibility of document in evidence. In the said judgment, single Judge of this Court relied on Javer Chand and others v. Pukhraj Surana3 to conclude that marking of a document is assigning exhibit number without judicial determination would not amount to admitting document in evidence and such objection can be raised at later point of time.
11) According to Order 13 Rule 3 CPC, the Court may at any stage of the suit, reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds for 2 2004(3) ALD 187 3 AIR 1961 SC 1655 6 such rejection. Order 13 Rule 4 CPC prescribes the endorsement to be made on the document when a document is admitted in evidence. According to it, there shall be an endorsement on every document which has been admitted in evidence containing number and title of the suit, the name of the person producing the document, the date on which it was produced and a statement of it having been so admitted and the endorsement shall be signed or initialled by the Judge.
12) In the present case, the trial Court opined that the recitals of the document shows it as a conveyance deed and as such it requires stamp duty and penalty. Against the said order, the respondents did not prefer any appeal or revision.
Subsequently at the time of cross-examination of D.W.1, it was brought to the notice of the trial court that without collecting the stamp duty and penalty the said document was marked, basing on the endorsement of the Sub-Registrar.
13) Judicial determination of admissibility of the document, even after that the said document was marked as Ex.B-5 without collecting sufficient stamp duty and penalty may be incorrect. The order and the finding of the court holding that it is a conveyance deed being final, cannot be overruled by the Sub-Registrar by a stroke of pen. Hence, the court can reject the document as inadmissible by exercising power under Order 13 Rule 3 CPC.
13) In view of the foregoing discussion, the finding of the trial court that the recitals in the said document make it a 7 conveyance deed and ordered for collection of stamp duty and penalty leading to demarcation of the document, cannot be found fault with, more so when the said order has become final. As such the order of the trial court warrants no interference.
14) In the result, the Civil Revision Petition is dismissed. No costs. Miscellaneous Petitions pending if any in this C.R.P. shall stand closed.
______________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR Dt:20.09.2019 GM