Calcutta High Court
The Calcutta Gujarati Education ... vs Budge Budge Company Ltd on 19 March, 2024
Author: Sugato Majumdar
Bench: Sugato Majumdar
OD - 5
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
IA NO. GA/17/2024
In CS/317/2003
THE CALCUTTA GUJARATI EDUCATION SOCIETY & ANR.
Vs
BUDGE BUDGE COMPANY LTD.
BEFORE:
THE HON'BLE JUSTICE SUGATO MAJUMDAR
Date: 19th March, 2024
Appearance:
Ms. Noelle Banerjee, Adv.
Mr. Prithwish Roy Chowdhury, Adv.
Mr. Dipak Dey, Adv.
Mr. Aniket Ojha, Adv.
...for the Plaintiff/Respondent.
Mr. Malay Kumar Ghosh, Sr. Adv.
Mr. Sakya Sen, Adv.
Ms. Nilanjana Adhya, Adv.
Mr. Atish Ghosh, Adv.
Mr. Tanmoy Sett, Adv.
Ms. Antara Dey, Adv.
...for the Petitioner/Defendant.
The Court: GA 17 of 2024 is filed on behalf of the Defendant for recording objections in connection with the deposition of the Plaintiff's witness in respect of question no. 51 to 59 as recorded in the minutes dated 13.06.2023.
2|Page In course of examination of the Plaintiff's witness, four agreements were adduced in evidence. The four agreements bear dates of 08.12.2008, 06.10.2008, 17.10.2009 and 16.05.2009 respectively. These agreements were marked as G, GA, GB and GC and the signatures were also marked accordingly. The said agreements are lease agreements of immovable properties exceeding one year of duration. All these agreements are unregistered agreements. All along, the Defendant was under
impression that objection, as to admissibility of the said four agreements and the mode adopted for proving the said four agreements, are irregular and cannot be allowed. The said will also be evident from the fact that the Learned Advocate for the Defendant did not put any question to the witness of the Plaintiff during cross- examination. It is also contended that the Defendant was not allowed inspection of the said agreements prior to tendering the agreements for evidence.
In the month of January 2024, it transpired to the Defendant during conference that there was an inadvertent error in not recording objection while tendering the said four agreements. These agreements were exhibited and marked. These four agreements are unregistered lease deed and are third party agreements. The witness was neither a party nor an attesting witness. As such mode adopted for proving the agreements are irregular and cannot be allowed. Therefore, the instant application is filed for recording objections of the Defendant inn exhibiting and marking the said agreements.
Affidavit-in-Opposition was filed on behalf of the Plaintiff. It is contended that the Defendant did not contemporaneously raise any objection with respect to the manner in which the documents in question have been proved and marked as exhibits. A right has accrued in favour of the Plaintiff. In order to maintain fair play, the present application should not be allowed. Moreover, the documents namely the
3|Page agreements have been relied upon for collateral purpose; that is why the same was never objected to and admitted in evidence. The present application is an afterthought, filed after lapse of seven months from the date of deposition of the Plaintiff's witness. These documents were filed by way of supplementary Judges' brief of documents and handed over to the Defendant, as recorded in the Order dated 26.04.2023. The Plaintiff also offered inspection of documents in terms of the letter dated 28.04.2023 which was refused. The Defendant refrained from taking any inspection of the document although so offered. Contention raised by the Defendant that no inspection of the documents was offered, is refuted by the Plaintiff. In nutshell, according to the Plaintiff, the instant application is liable to be rejected.
Mr. Ghosh, the Learned Senior Counsel argued first that the agreements are compulsorily registerable documents being lease deed for a span of more than one year. The agreements are inadmissible as evidence. An objection to its admissibility is not excluded and can be raised at any later stage of the proceeding. Mr. Ghosh relied on the observations of the Supreme Court of India in R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr. [(2003) 8 SCC 752]. Mr. Ghosh also referred to a decision of the Supreme Court of India namely K.B. Saha & Sons. Pvt. Ltd. Vs. Development Consultant Ltd. [(2008) 8 SCC 564] to submit that an unregistered lease deed, which is a compulsorily registerable document under Section 49 of the Registration Act is not admissible as evidence if the same is not registered. Referring to the observations made therein, he further submitted that if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use the document for the purpose of proving an important clause would not be using it as a collateral purpose.
4|Page Ms. Banerjee, appearing for the Plaintiff argued that any objection as to admissibility of a document should be taken at the time of tendering of the same. The documents namely the agreements were disclosed earlier and tendered in presence of the Defendant's Counsel. They did not raise any objection. Subsequently the Defendant cannot be allowed to raise any objection undermining the advantage gained by the Plaintiff for not raising any objection by the Defendant. Referring to four Judges' Bench decision in Javer Chand & Ors. Vs. Pukhraj Surana (AIR 1961 SC 1655), Ms. Banerjee submitted that once a document is admitted in evidence, such admission cannot be called in question at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. Once, the document is admitted in evidence it is not open either to the trial court itself or to a Court of appeal or revision to go behind the order. The Learned Counsel also relied upon R.V.E Venkatachala Gounder's case (supra) to substantiate argument. She also relies upon the observations made by the Supreme Court of India in Shyamal Kumar Roy Vs. Sushil Kumar Agarwal [(2006) 11 SCC 331] to argue that what is necessary is that a document should be marked in presence of the parties and they had an opportunity to object to the marking of the document. The question of judicial determination of the matter would arise provided an objection is taken as to what document is tendered in evidence and before it is marked as an exhibit.
It is further contended by the Learned Counsel for the Plaintiff's that an unregistered lease deed can nevertheless be used for collateral purpose. The agreements in question were produced for the purpose to show rents payable in respect of the nearby premises. They were to be used for collateral purpose. Referring to Division Bench decision of Allahabad High Court in Baij Nath Vs. Kundan Lal [AIR 1929 All 831] it was submitted that unregistered lease deed can
5|Page be admitted in evidence for collateral purpose of proving the rate of rent agreed upon and for determining the damages. This is the exact purpose for which the agreements were adduced in evidence in the instant case, as submitted. Refereeing to another Division Bench Judgment of this Court namely Bimal Chandra Mondal Vs. Durgadas Mondal & Anr. [2019 SCC OnLine Cal 6743] that there is a distinction between the admission of a document, which is inherently inadmissible in evidence and the document and instrument which is otherwise admissible in evidence but upon observance of further consequential steps. She further referred to the observations made in the decision that once the document is admitted in evidence without any objection being raised by adversary, question on its admissibility cannot be challenged at any subsequent stage. Thus, it is argued that the instant application is liable to be dismissed.
I have heard rival submissions.
One of the grounds of objection against the exhibited documents namely the agreements which have been marked as Ext.G, GA, GB and GC is that these are unregistered deed of lease, hence not admissible in evidence. Section 49 of the Registration Act, 1908 which provides with effect of non-registration of documents required to be registered, states:
"Section 49: Effect of non-registration of documents required to be registered. No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
6|Page
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be affected by registered instrument."
Proviso to the section makes an avenue for admission as evidence of unregistered documents for collateral transactions. These agreements, namely Ext.G, Ext.GA, Ext.GB and Ext.GC were executed between third parties concerning right, title and interest emanating therefrom between non-parties to the suit. No right, title or interest emanating from these agreements are subject matter of the present suit. These documents produced to show prevailing rate of rent, as submitted by the Learned Counsel. These agreements were to show rents payable by four tenants of the building of the Plaintiff's Society in which the Defendant company was in possession. Clearly these agreements were adduced in evidence for collateral purpose. The principle of law has succinctly been elucidated in K.B. Saha & Sons. Pvt. Ltd.'s case:
"34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:
1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
7|Page
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
In the case in hand, the agreements are merely to indicate rent prevailing between the Plaintiff's society and other tenants. These agreements, being admissible for collateral purpose are not one which are inherently inadmissible. In R.V.E Venkatachala Gounder's case the Bench contemplated two classes of documents for considering objections on admissibility of the same:
"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (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
8|Page the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been 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 latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for
9|Page insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
Therefore, they do not belong to the former classes of documents as contemplated in R.V.E Venkatachala Gounder's case (supra) in which case objections as to the admissibility is not excluded and is available to be raised at any stage of the proceeding. In Shyamal Kumar Roy Vs. Sushil Kumar Agarwal [(2006) 11 SCC 331] this was observed by the Supreme Court of India:
"22. What was necessary was that the document should be marked in presence of the parties and they had an opportunity to object to the marking of the document. The question of judicial determination of the matter would arise provided an objection is taken as to what document is tendered in evidence and before it is marked as an exhibit in the case."
In Shyamal Kumar Roy's case (supra) the Supreme Court of India referred to the observations made by Four Judges' Bench in Javer Chand & Ors. Vs. Pukhraj Surana (AIR 1961 SC 1655). In Javer Chand's case, with reference to section 36 of the Stamp Act, the Supreme Court of India observed that 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. In S. Kaladevi v. V.R. Somasundaram [(2010) 5 SCC 401] the Supreme Court of India observed:
10 | P a g e "12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property.
The proviso, however, would show that an unregistered document affecting immovable property and required by the 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of the proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs 100 and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act." Observations made in Shyamal Kumar Roy's case (supra) was considered in this case.
In view of conspectus of facts and propositions of law discussed as above this Court come to the conclusion firstly, that the agreements which are marked as Ext. G to GC are admissible in evidence for collateral purpose in terms of proviso of Section 49 of the Registration Act, 1908; secondly, these agreements are not inherently inadmissible; thirdly, at the time of adducing evidence the Plaintiff's witness 11 | P a g e identified the signatures of the Honorary Secretary of the society in the agreements and further stated that these agreements were signed in his presence. Objection as to their admissibility should be taken at the time of tendering and exhibiting those documents. Since, those objections were not raised, in view of the settled principal of law as discussed above, objection cannot be entertained or recorded at subsequent stage of the suit.
Therefore, GA 17 of 2024 stands dismissed.
Let the suit appear in the list on 2nd April, 2024 for witness action.
(SUGATO MAJUMDAR, J.)