Karnataka High Court
Riyaz Khan And Ors. vs Modi Mohammed Ismail And Ors. on 8 February, 2002
Equivalent citations: AIR2003KANT3, ILR2002KAR3369, 2002(3)KARLJ551, AIR 2003 KARNATAKA 3, 2002 AIR - KANT. H. C. R. 2568, (2002) 3 ICC 676, (2002) 3 KANT LJ 551
ORDER G.C. Bharuka, J.
1. In this revision petition, which has been filed by the plaintiffs, the crucial question to be decided is that if a document tendered in evidence is marked as "subject to objections" on the ground of deficient stamp duty, whether the Court can subsequently direct for payment of deficit stamp duty and penalty under the provisions of the Karnataka Stamp Act, 1957 (in short the 'Act').
2. The petitioners are the plaintiffs in a suit in O.S. No. 6674 of 1998 on the file of the 5th Additional City Civil Judge, Bangalore. This suit has been filed for a relief of permanent injunction against the defendants. Lawfulness of his possession over the property was sought to be justified by the plaintiffs on the basis of a contract of sale dated 28-2-1997. The plaintiff/petitioner tendered this document as an evidence but its admissibility was objected by the defendants on the ground that it was not duly stamped. The Court marked the document as Ex. P. 2 subject to objections by the defendants. Subsequently, the Court took up the issue regarding admissibility of the document and passed the impugned order dated 28-3-2000 holding that the document was not duly stamped and therefore the plaintiff should pay deficit stamp duty with penalty.
3. Sri G.S. Visweswara, learned Counsel appearing for the petitioners, has assailed the validity of the impugned order by raising the plea that once the document is marked as exhibit, it should be deemed to have been admitted and as such in view of Section 35 of the Act, neither its admissibility can be questioned at a subsequent stage nor the Court can direct for paying the deficit stamp duty and penalty thereon. In support of his submission, he has relied on the judgment of the Supreme Court in the case of Javer Chand and Ors. v. Pukhraj Surana, .
4. Section 34 of the Act declares that instruments not duly stamped are inadmissible in evidence subject to exceptions provided therein. This section to the extent it is relevant for the present case reads as under.--
"Section 34. 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 not being an instrument chargeable with a duty not exceeding fifteen paise only, or a mortgage of crop Article 35(a) of the Schedule chargeable under Clauses (a) and (b) of Section 3 with a duty of twenty-five paise shall, subject to all just exceptions, 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 five rupees, or, even ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) to (d) xxx xxx xxx".
5. Section 35 of the Act prohibits questioning of instrument which has been admitted in evidence. It reads thus--
"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".
6. Before proceeding further, it is necessary to refer to Rules 4(1) and 6 of Order 13 of the CPC which read as under.--
"Order 13. Production, impounding and return of documents.
R. 4. Endorsements on documents admitted in evidence.--
(I) 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 document,
(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 initialled by the Judge".
"Rule 6. Endorsements on documents rejected as inadmissible in evidence.--Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in Clauses (a), (b) and (c) of Rule 4, sub-rule (1), together with a statement of its having been rejected, and the endorsement shall be signed or initialled by the Judge".
7. Similarly, it will be necessary to refer Rule 82(1) of the Kamataka Civil Rules of Practice, 1987 which read as under.--
"R, 82. Marking of exhibits.--(1) Only documents admitted in evidence shall be marked as exhibits".
8. None of the above statutory provisions have visualized and provided for the procedure to be followed by a Court in a situation wherein objection is raised to the admissibility of a document by the other contesting party. But, such situations frequently keep arising during the course of trials, as has been noticed by the Supreme Court in the cases of Ram Rattan (dead) by L.Rs v. Bajrang Lal and Ors., and Bipin Shantilal Panchal v. State of Gujarat, (2001)3 SCC 1 :2001 Cri. L.J. 1254(SC).
9. A reading of Rules 4 and 6 of Order 13 of the CPC and Rule 82 of the Civil Rules of Practice, clearly indicate that when a document is tendered in evidence, then the Court has only two options, namely (i) either admit the document in evidence and mark it as an exhibit, or (ii) to reject the document. But, keeping in view these statutory provisions the Court cannot mark the document as exhibit and at the same time keep the question of its admissibility pending further adjudication of the aspect, as has been done in the present case. But, still the Trial Courts adopt such a practice keeping in view the practical difficulties to ensure uninterrupted recording of evidence. The 3-Judges Bench of the Supreme Court in Ram Rattan's case, supra, dealing with similar situation arising under the Stamps Act, 1899 has held that.--
"The endorsement made by the learned Trial Judge that "objected, allowed subject to objection" clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted".
10. Applying the aforesaid ratio it has to be held in the present case as well that mere marking of a document as exhibit is not conclusive for the purpose of giving it any immunity from questioning under Section 35 of the Act, because, admittedly the document was not admitted after judicial application of mind and the marking was only for the sake of convenience and the issue of admissibility was postponed to facilitate uninterrupted recording of evidence.
11. The 5-Judges judgment of the Supreme Court in Javer Chand's case, supra, relied on by Sri G.S. Visweswara, learned Senior Counsel for the petitioners, is of no help to the plaintiffs in the present case because in this case the Supreme Court had found that the document was admitted in evidence after due application of judicial mind which is not the situation in the present case. In this view of the matter, direction of the Trial Court to the plaintiffs to pay deficit duty with penalty as provided under Clauses (a) of the proviso to Section 34 of the Act cannot be said to be suffering from any error requiring interference by this Court.
12. Anyhow, before parting, I wish to make it clear that if there is an objection to the admissibility of a document tendered in evidence on the ground of deficit stamp duty the same has to be decided as soon as the document is tendered in evidence and till objection to its admissibility is decided it cannot be marked as exhibit. This procedural necessity has been emphasised by the Supreme Court in both the above referred judgments of the Supreme Court.
13. In Javer Chand's case, supra, it has been held that "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. Similarly, in Ram Rattan's case, supra, it has been held that.--
"The Court, and of necessity it would be Trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, 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".
14. Even recently, in the case of Bipin Shantilal Panchal's case, supra, the Supreme Court with a view to accelerate the trials in criminal cases has held that "where admissibility of document is objected then the Court should tentatively mark the document as an exhibit and can determine the objections at the last stage in the final judgment". But while so holding the Apex Court has carved an exception regarding admissibility of a document where objection is based on deficient stamp duty. It has been held that "however, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further".
15. Keeping in view the procedural requirements provided under the CPC and the law laid down by the Supreme Court, it has to be held that whenever there is an objection to admissibility of a document on the ground that the document is not stamped, it is the bounden duty of Trial Courts to decide admissibility aspect of the document as soon as it is tendered and objected on the said ground by the other side. But, it needs to be clarified that if the document is inadvertently marked without judicially determining the objection, then marking of a document as an exhibit has to be treated merely as tentative and taking a decision on the objection at a later stage by the Trial Court cannot be said to be impermissible or without jurisdiction. It is so because, non-consideration of objections by Trial Courts and marking it as exhibit is a mistake of the Court and the litigating parties cannot be made to suffer for the same. It is well-settled that there is no higher principle for guidance of the Court than the one that no act of Court should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court then he should be restored to the position he would have occupied but for that mistake (See Jang Singh v. Brij Lal and Ors., . But, lapse on the part of Trial Judges to determine the objection to the admissibility of a document of the nature involved herein has to be taken as failure on his part to discharge his judicial duty in the manner required by law and such instances as and when found has to be dealt with in the administrative side in order to maintain the discipline in the judiciary.
16. For the aforesaid reasons, the revision-petition is dismissed.