Karnataka High Court
Smt. Susheela S Sheregar vs Sri.Jayanth Kumar Shetty on 27 January, 2017
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION Nos.253-255/2017 (GM-CPC)
BETWEEN:
SMT. SUSHEELA S. SHEREGAR
W/O G. SHESHAYYA SHEREGAR,
AGED ABOUT 60 YEARS,
RESIDENT OF BALAYYANA MANE,
GANGOLLI VILLAGE,
KUNDAPURA TALUK,
UDUPI DISTRICT - 578 101
NOW RESIDING AT D. PRATHAP NAGAR,
SHASTRI NAGAR,
NEAR SHEETHAL TALKIES,
KURLA, MUMBAI - 70. ... PETITIONER
(BY SRI: VIGHNESHWAR S. SHASTRI, ADVOCATE)
AND:
1. SRI. JAYANTH KUMAR SHETTY
S/O SUBBAYYA SHETTY,
AGE: MAJOR,
R/O PATEL HOUSE,
HEJAMADY VILLAGE, UDUPI TALUK,
PRESENTLY RESIDING AT
VADERHOBLI VILLAGE,
KUNDAPURA TALUK
UDUPI DISTRICT - 578 101.
2
2. SRI. JANARDHANA NAIK
S/O K.H. PANIYAPPA NAIK,
AGE: MAJOR,
R/O KODI, KUNDAPURA KASBA VILLAGE,
KUNDAPURA TALUK,
UDUPI DISTRICT - 578 101. ... RESPONDENTS
(BY SRI: PRASAD HEGDE K., ADV. FOR C/R-1;
R-2 NOTICE DISPENSED WITH V/O DATED 27/01/2017
(MEMO FILED)
*****
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 06.08.2016 PASSED ON I.A.III IN
R.A.64/2013 ON THE FILE OF ADDL. DISTRICT JUDGE,
UDUPI, SITTING AT KUNDAPURA AT ANNEX-J AND ETC.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Though these writ petitions are listed for preliminary hearing, with the consent of the learned counsel on both sides, they are heard finally.
2. Petitioner herein was defendant No.1 in O.S.No.10/2002 and the appellant in R.A.No.64/2013 3 which is now pending on the file of the Additional District and Sessions Judge at Udupi, sitting at Kundapura.
3. O.S.No.10/2002 was filed by the first respondent-plaintiff seeking the relief of specific performance of an agreement to sell dated 8.8.1996, which agreement was marked as Ex.D8 before the trial Court, whereas, O.S.No.3/2003 was filed by the petitioner-herein seeking the relief of partition and separate possession of the suit schedule property. Both the suits were tried together and by judgment and decree dated 30.11.2009, the Civil Judge (Sr.Dn.) at Kundapura, decreed O.S.No.10/2002 and dismissed O.S.No.3/2003. The said Court granted the relief of specific performance of agreement to sell dated 8.8.1996. Being aggrieved by that judgment and decree, the defendant petitioner herein has preferred R.A.No.64/2013 before the first Appellate Court. 4
4. During the pendency of that appeal, the appellant who is the petitioner herein filed three applications, one, under Sections 94(e) and 107, read with Order XLI Rule 33 read with Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, (CPC). That application was for amendment of the Memorandum of Appeal for inclusion of additional grounds. The same was numbered as IA No.3. The appellate Court by order dated 6.8.2016 has dismissed that application. The second application which is IA No.4 was filed under Order XIV Rule 5 read with Section 151 of CPC seeking framing of additional issues. That application also has been dismissed by order dated 6.8.2016. The third application which is IA No.5 was filed under Section 58 (1), (2) and (3) of the Karnataka Stamp Act, 1957 (hereinafter referred to as 'the Act' for brevity) read with Section 151 of the CPC. The appellate Court has dismissed that application also on the very 5 same day. Being aggrieved by the dismissal of the aforesaid three applications, these writ petitions have been preferred.
5. I have heard learned counsel for the petitioner and learned counsel for the first respondent, at length and perused the material on record.
6. While taking into consideration the order passed on IA No.5 first, it is noted that the appellate Court has dismissed the application filed by the petitioner who is the appellant in Regular Appeal by placing reliance of Section 35 of the Act.
7. Learned counsel for the respective parties drew my attention to Section 35 as well as Section 58 of the Act. Petitioner's counsel would contend that, although under Section 35 of the Act it is stated that an instrument which has been admitted in evidence shall not be called in question at any stage of the same suit 6 or proceeding on the ground that the instrument has not been duly stamped, there is an exception to the said bar which is under Section 58 of the Act. He submitted that Section 58 empowers reconsideration of a document or instrument which is improperly marked, by an appellate Court. It is in that context that the application was filed by the petitioner herein the appellant in the Regular Appeal and that the appellate Court ought not to have dismissed the said application.
8. Per contra learned counsel for respondent No.1 contended that Section 58 of the Act would apply only in a case where the trial Court has made an order admitting any instrument in evidence improperly or the payment of duty and penalty under Section 34 is incorrect. It is only in such a situation that the appellate Court could consider the order admitting the instrument by the trial Court and not otherwise. He submitted that, when once the petitioner herein had not 7 objected to marking of Ex.D8 which is the agreement to sell dated 8.8.1996 before the trial Court, he had waived his right to object to the marking of the said document and that the appellate Court also could not review the marking of Ex.D8 in the appeal. Both counsel have relied upon certain decisions, which decisions shall be referred to later.
9. Section 35 of the Act reads as under:
Section 35: 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 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
While, Section 58 reads as under:
Section 58: Revision of certain decisions of Courts regarding the sufficiency of stamps:- (1) When any Court in the exercise of its Civil 8 or Revenue jurisdiction or any Criminal Court in any proceeding under [Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898] makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 34, the Court to which appeals lie from, or references are made by, such first mentioned Court may, of its own motion or on the application of the Deputy Commissioner, take such order into consideration.
(2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 34, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce 9 the same, and may impound the same when produced.
(3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Deputy Commissioner and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.
(4) The Deputy Commissioner may
thereupon, notwithstanding anything
contained in the order admitting such
instrument in evidence, or in any certificate granted under Section 41, or in Section 42, prosecute any person for any offence against the stamp law which the Deputy Commissioner considers him to have committed in respect of such instrument.
10. It is noted that Section 35 of the Act itself carves an exception in the form of Section 58 of the Act. On a reading of these two Sections harmoniously, it 10 would become clear that while there is a bar for questioning any document which has been admitted in evidence, subsequently in the same suit of proceeding on the ground that the instrument has not been duly stamped with no such objection being raised at the time of its admission, under Section 58 of the Act, the appellate Court on its own motion or on the application of the Deputy commissioner could taken into consideration the order admitting in evidence any instrument as duly stamped or as not requiring a stamp, or upon payment of duty and penalty under Section 34 and consider the correctness of that order. Sub-section (2) of Section 58 of the Act deals as to what the appellate Court should do after taken into consideration the order passed by the trial Court. Learned counsel for the respondent No.1 submitted that it is only when an objection has been raised with regard to admission of any document and an order being 11 passed by the trial Court admitting that document, in such a case only, the order admitting the document could be considered by the appellate Court and not when no objection was raised by the opposite party for marking of the document. He contended that in such a case the appellate Court would be bound by what the trial Court had done at the time of marking of an inadmissible document or instrument, when there was no objection to the marking of the same and had admitted the document.
11. Such a interpretation cannot be accepted for the simple reason that a harmonious reading of Section 35 and Section 58 of the Act would indicate that, Section 58 is an exception of Section 35 of the Act. If a party does not raise any objection to the marking of a document which is inadmissible in evidence, then such a party would lose his right to object to the same in the same proceeding or even subsequently. In other words, 12 as has been stated by this Court in the case of Gajanan Seshappa Hegde Vs. Venkatraman Sheshappa Hegde and others reported in 1999(2) KLJ 462, the right to object would be waived and no objection can be taken even before the appellate Court. But, if a document which could not have been admitted in evidence, has in fact been admitted in evidence by the trial Court, without there being any objection, it cannot be held that the appellate Court would be bound by the admission of such document by the trial Court, if it has been wrongly admitted in evidence. The appellate Court could consider the admission of such a document in accordance with law on its own motion or on the application of the Deputy Commissioner. The power granted to the appellate Court under Section 58 of the Act cannot be scuttled by what has been stated under Section 35 of the Act. In fact Section 58 of the Act is an exception to what is stated in Section 35 of the Act. 13 Therefore, even if a party has not objected to the marking of a document or admissibility of such a document in evidence by the trial Court, the correctness of the same could be considered by the appellate Court. In fact, it would be necessary to do so by the appellate Court, if on the basis of such a document, the suit has been decreed.
12. The above position becomes clear from the observation of a Division Bench of this Court in the case of Digambar Warty and Others Vs. District Registrar, Bangalore Urban District and Another reported in ILR 2013 KAR 2099. In that case, it has been observed that, under Section 58 of the Act, the Appellate Court could review the finding recorded by the original Court under Section 34 of the Act either suo motu or on the application of the Deputy Commissioner. Though it says that it is a power under Section 34 of the Act, in my view the substance of the power is to reconsider as to 14 whether the trial Court was justified in admitting a document in evidence in the face of there being no objection to the admission of the said document. The reason as to why suo motu power has been given to the appellate Court to re-consider the aspect of admission of document is stated by a learned Single Judge of this Court in the case of Smt. Savithramma R.C. Vs. M/S.Vijaya Bank and another reported in 2015(4) AKR
45. The following paragraphs could be usefully extracted.
Paragraphs 6: From the aforesaid statutory provisions and the decision, it is clear that a duty is cast upon every Judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking 15 is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso (a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten time penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence. If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35 of the Act provides that such admission shall not be called in question at any stage of the same 16 suit or proceeding on the ground that the instrument has not been duly stamped. It has nothing to do with impounding the document. A duty is cast upon every Judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. The tendency to mark documents without inspection and verification should be eschewed. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel for considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it 17 is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. Section 37 of the Act provides what the Judge has to do when he has collected duty and penalty under Section 34 of the Act and what he has to do, if the case does not fall under Section 34 of the Act. Section 37 of the Karnataka Stamp Act reads thus:
37: Instruments impounded how dealt with:
(1) When the person impounding an instrument under Section 33 has by law or consent of parties authority to receive evidence and admit such instrument in evidence upon payment of a penalty as provided by Section 34 or of duty as provided by Section 36, he shall send to the Deputy Commissioner an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the deputy 18 commissioner or to such person as he may appoint in this behalf.
(2) In every other case, the person so impounding an instrument shall send it in original to the Deputy Commissioner.
Paragraph 7: If the Judge ha acted under Section 34 of the Act and collected duty and penalty and admitted the document in evidence, then under sub- section (1) of Section 37, he shall send to the Deputy Commissioner an authenticated copy of such instrument together with a Certificate in writing stating the amount of duty and penalty levied in respect thereof and shall send such amount to the Deputy Commissioner or such person as he may appoint in this behalf. If the Judge does not act under Section 34 of the act, but the document is insufficiently stamped and admitted in evidence though objection regarding admissibility cannot be raised subsequently that does not take away his obligation to impound the document under 19 Section 33 of the act. If the document is insufficiently stamped and if the Court has admitted such instrument in evidence without collecting duty and penalty, then the Judge shall proceed under Section 33 of the Act and impound the document. After impounding the document, he shall proceed under Section 37(2) of the Act and shall send the impounded instrument in original to the Deputy Commissioner to be dealt with under Section 39 of the Act. Therefore, impounding the document should not be confused to admission of document without objection regarding admissibility or on such objection being taken after collecting the duty and penalty."
13. In the aforesaid judgment, reliance has been placed on two decisions of this Court namely in the case of Lakshminarayanachar Vs. Narayan and another reported in 1969(2) Mys. LJ 299 and K.Amarnath Vs. Smt.Puttamma reported in 2000(4) Kar. LJ 55. Thus, it has been emphasized that, a duty is cast upon every 20 Judge to examine every document that is sought to be marked in evidence, as the nomenclature of the document is not decisive.
14. In the aforesaid terms it is held that the petitioner herein could not have invoke Section 58 of the Act for the purpose of seeking a review of marking of Ex.D8 and also the admissibility of the said document in evidence. The appellate Court therefore rightly rejected that application. However, having regard to the scope of Section 58 of the Act, the appellate Court could suo motu exercise its jurisdiction under that provision if it so thinks.
15. As far as application filed under Order XIV Rule 5 of CPC is concerned, it is noted that the petitioner herein sought for framing of six additional issues. The appellate Court however, dismissed that application by assigning certain reasons. Having regard 21 to the scope of power under Order XIV Rule 5 of CPC, I find that, the impugned order would not call for any interference. However, the appellate Court could exercise its jurisdiction under Order XIV Rule 5 of CPC even at the time of final adjudication of the appeal.
16. As far as the order passed on IA No.3 is concerned, the petitioner herein sought for amendment of his Memorandum of Appeal in order to incorporate certain grounds. The appellate Court has dismissed that application. I find that the petitioner herein intended to raise certain additional grounds in the Memorandum of Appeal. The raising of those grounds by way of an amendment of the Memorandum of Appeal, in my view ought to have been permitted by the appellate Court. The application was not in the nature of an amendment of the pleadings before the trial Court. The consideration which arise for amendment of the plaint or written statement or any other pleading before the 22 trial Court is different from one pertaining to the amendment of the Memorandum of Appeal. Merely because certain additional grounds are sought to be raised in Memorandum of Appeal, would not imply that the appellant before the appellate Court has established his case on those grounds. The amendment is only for the purpose of making submissions which arise in the appeal which is essentially based on the judgment of the trial Court and the pleadings and evidence on record. Therefore, the appellate Court ought not to have dismissed the application seeking amendment of the Memorandum of Appeal by which certain additional grounds were sought to be raised. One significant factor is that the first Appellate Court is a Court, which would consider an appeal not only on questions of law, but also on all questions of fact. In the circumstances, when the entire appeal is at large before the first appellate Court, all grounds which could be raised by appellant 23 before such Court must be permitted to be raised. Therefore, I find that in these writ petitions, interference is called for only with regard to the order passed on IA No.3. The said order is quashed. The application for amendment is allowed. The petitioner herein is permitted to amend his Memorandum of Appeal.
17. Petitioner's counsel submit that, amended Memorandum of Appeal would be filed on the next date of hearing in the appellate Court or any other date to be prescribed by the first appellate Court. Once the Memorandum of Appeal is filed, the petitioner herein who is the appellant in the regular appeal is directed to make his submissions on the merits of the appeal.
18. It is needless to observe that both parties would co-operate with the appellate Court for expeditious disposal of the appeal.
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19. It is clarified that in the event the appellate Court intend to exercise its jurisdiction under Section 58 of the Act or under Order XIV Rule 5 of the Code of Civil Procedure, then observations made by the said Court during the course of the impugned orders would not come in the way of such exercise of jurisdiction.
20. The writ petitions are disposed of in the aforesaid terms.
Sd/-
JUDGE ap