Madras High Court
Radha Ammal (Died) vs Manthi Reddiar on 30 September, 2008
Author: K.Kannan
Bench: K.Kannan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2008 CORAM THE HONOURABLE MR. JUSTICE K.KANNAN Civil Revision Petition (P.D.) No.1212 of 2008 and M.P.No.1 of 2008 Radha Ammal (died) ... Petitioner. 1.Gurunathan Govindasamy(died) 2.Saroja Angubai(ded) 3.Mallika 4.Chandrakesavan 5.Munusamy 6.Kumar 7.Mani 8.Suresh 9.Senkaliappan 10.Minor Anand 11.Minor Siva 12.Minor Durga 13.Tamil Selvi Respondents 10 to 12 are minors and represented by their father and natural guardian Senkaliappan. ...Petitioners Vs Manthi Reddiar ... Respondent Prayer:- Civil Revision Petition filed against the order and decree dated 18.12.2007 made in I.A.No.1397 of 2006 in O.S.NO.244 OF 1997 on the file of the District Munsif-cum-Judicial Magistrate at Ambattur. For Petitioners : Mr.V.Chandrakanthan For Respondent : Mr.N.Damodaran O R D E R
The revision petition is directed against the petition for rejection of documents which had been tendered in evidence at the time of trial by the defendants. The documents are photocopies of a promissory note alleged to have been executed by the first defendant who is dead and a mortgage receipt. The objection raised by the plaintiff/respondent before the court below was that the originals are not with the plaintiff as falsely alleged and the photocopies could not have been received in evidence. The Court below accepted the contention of the respondent and allowed the petition for rejecting this documents.
2. The relevance of the documents which were sought to be introduced in evidence could be examined by the reference to the contentions raised between the parties. The suit is for specific performance which is resisted by the defendant by stating that it is a fabricated document. The contention of the defendants is to the effect that the first defendant and her sons had borrowed some money from the plaintiff's deceased father on the basis of promissory note. Towards the interest payable on the promissory note, the property belonging to the defendants were handed over possession to the plaintiff's father and in evidence of the same, a mortgage receipt was obtained. The document was unregistered. The plaintiff's father had also obtained the thumb impression of the deceased first defendant and on some occasion when the defendants were making demands for return of the property, the document had been pressed into service by fabricating an agreement in their favour.
3. The defendants themselves had filed an independent suit for recovery of possession of the property by offering to repay the amount borrowed by the defendants from the plaintiff's father. The said suit is also pending. Both the suits were sought to be taken for joint trial. The plaintiff had examined himself and during the course of trial, the defendants filed proof affidavit and sought to mark two documents (i) promissory note and (ii) a mortgage receipt. It appears that the plaintiff had caused objection to the photocopies of documents , but the documents were marked before the Court below. The certified copy of documents are produced before me and I do not see any endorsement that any objection had been made at the time of marking the documents themselves. Only after marking the documents in evidence, the plaintiffs had filed the application for rejection of the documents under Order 13 Rule 3 CPC. The contention of the petitioner is that the Court below failed to follow the decision of the Supreme Court in BIPIN SHANTILAL PANCHAL VS. STATE OF GUJARAT AND ANOTHER reported in 2001(3) SCC 1 where the Supreme Court had laid down directives as to the procedure to be followed at the time when a document is sought to be produced in evidence and when one of the parties was objecting to the reception of the documents. The particular point of relevance is that whenever the trial is sought to be stalled objection regarding the document, the best procedure would be to admit the document subject to objection and direct the parties to address arguments on the admissibility or otherwise of the document at the time of arguments. The only exception given to such a procedure is set out in paragraph 14 where the Supreme Court observed that if there was deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further. The point to be noted here is that the mortgage receipt is not written on any stamp paper nor is the document registered. The fact that the document is not stamped and hence not admissible, does not appears to have objected before the lower court either in the counter or at the time of argument. All the objection that has been referred to and which has been cited by the Court below for allowing the petition and rejecting the document Ex.B.13 and B.14 is that the documents are photocopies and they cannot be received in evidence.
4. The photocopies are secondary evidence. The Indian Evidence Act sets out the procedure for receiving the secondary evidence. It has to be shown that primary evidence is not available or that anyone of the circumstances such as non-availability or custody of the document in the hands of the adversary will be sufficient grounds for producing secondary evidence. The proof affidavit filed by the defendant shows that the defendants' contention is that the promissory note as well the mortgage receipt are in the hands of the plaintiff and therefore the photocopies are given. The secondary evidence includes among other documents a document produced by exercise of the mechanical device that ensures the correctness of the original. The photocopies of the document is one such procedure and if a valid ground is given for acceptance of secondary evidence, then there cannot be any objection to the reception of photocopies of documents. The rejection of the documents had arisen only by the fact that the photocopies and therefore they cannot be received in evidence. There is no merit in such a contention for, if the objection is that there is no basis for not producing the original or that the so called original is not in the custody of the plaintiff himself as contended by the defendants, then it is a matter that has to be brought out in the cross-examination of the witness and the reception of the documents themselves cannot be prohibited.
5. Counsel for the respondent refers to be several decisions of the Supreme Court which are to the effect that the unregistered and unstamped documents could not have been received in the evidence by the court below and there are no additional reasons why the copies of documents which were tendered in evidence could not be received. Counsel refers to the decision in A.C.LAKSHMIPATHY AND ANOTHER VS. A.M.CHAKRAPANI REDDIAR AND ANOTHER reported in (2001) 1 MLJ Page 1 where the Division Bench had held that a unstamped unregistered partition deed cannot be received in evidence for any purpose. An unstamped document which is objected to at the time of marking the document, cannot be received in any evidence at all as a matter for which there is a specific bar under Section 35 of the Stamp Act. The point was being made by the Division Bench at the final hearing of the appeal after it had gone through the entire course of trial. Here, in this case, the admissibility of the documents is a point in issue which, as per the decision of the Supreme Court will take at the time of argument. There is no ground for defying the judgment and throw out of reckoning the document for consideration at the time of argument.
6. The counsel also refers to another decision in M.CHINNAPPAN VS. M.RANGANATHAN AND ANOTHER reported in 2004 5 CTC 326 where the Court had held referring to the decision of the Supreme Court that in any case where the document is not duly stamped, the Court will not receive the document as evidence. That one exception, the Supreme Court itself has made while stating that the trial need not be held up on account of production of unregistered document or where they were objecting to the admissibility of document. This decision is also of no value. If at all, it is only a point in favour of the revision petitioner that general principle enunciated by the Supreme Court in the decision cited above had been reiterated.
7. There is yet another decision of this Court in V.R.DEVARAJ VS. G.NARAYANASAMY AND 4 OTHERS reported in 2001 (4) CTC 597 in that decision, the document was objected to at the time of trial on the ground that it was unregistered and the trial Court upheld the objection. The revision petition had been filed by the party aggrieved by the non reception of the document in which the High Court had allowed the revision petition and directed the trial Court to consider the matter afresh in the light of the decision of the Supreme Court referred to supra in Bipin Shantilal Panchal's case. The law laid down by the Supreme Court in Bipin Shantilal Panchal's case ought to register strongly with the practitioners at the trial court and trial court judges. Times without number the trials are being held up on account of frivolous objections regarding the admissibility of documents. The easiest method of securing a quick course of the trial by the court is to see that whenever any objection is made on the admissibility of a document and it involves a complex question of law, the easiest option is to mark the document subject to objection and then direct the parties to adduce argument on the admissibility of the document at the time of final stage of arguments. This salutary principle which was a departure from the earlier position expressed by the Courts is meant as a necessary guideline in ensuring that the trials are never stopped by objection regarding the admissibility of documents. The Supreme Court itself had clearly spelt out that this only occassion when the admissibility of the document is to be immediately considered is when there involved the issue of payment of stamp duty. The guideline comes in view of the fact that Section 35 of the Stamp Act employs the expression that no document which is required to be stamped in the manner set forth under the Act could be received in evidence. The expression in evidence has been understood and interpreted by the Court that the document if it is not sufficiently stamped, the document could not be tendered in evidence at all. This expression shall be seen as completely different from the expression which is found in Section 49 of the Registration Act which states that the document which is required to be registered under Section 17 of the Registration Act and when it is not registered, such a document could not be received as evidence of any transaction affecting the property. Here the expression "as evidence" must be understood as an evidence which a party seeks to adduce it relying on the recitals of the documents. It does not completely affect the production of the document itself. Section 49 of the Registration Act marks out the exception, when the Court can still look into an unregistered document for three instances of which among others, allows an unregistered instrumental to be looked into for collateral purpose. It is not necessary for us to go into what constitutes collateral purpose, but this illustration is brought out here only to show that language employed by the Stamp Act and the Registration Act make reference to how to cope with the admissibility of documents which are either unstamped or unregistered.
8. In this case, insofar as the promissory note is concerned the photocopy shows that the original had been properly stamped. As far the mortgage receipt, it could not have been validly executed on un-stamped papers and it can not take effect without due registration. This document is not put to use for enforcing any right as a mortgage as such, nor is a there a claim for redemption under Order 34 Rule 1 CPC. The defendants were merely trying to use it for a collateral purpose namely the character of possession of the plaintiff and trying to dispel the contention that the plaintiff was in possession of the property under this agreement. It is quite possible that the contention given by the defendant is not true and the plaintiffs has a right to establish that such a contention that the plaintiffs were put in possession of the property only under the agreement of sale and not through an instrument called as mortgage receipt. While the mortgage even for one rupee would require registration and the document which is unregistered could not be used as a mortgage document to sue for redemption, a suit for recovery of possession of property cannot be defeated, if any reliance is made by a party that the possession is not relatable to an agreement or any other transaction, but it was related only to a transaction evidencing a debt.
9. The documents sought to be produced by the defendants have definite relevance to the issue involved in the suit and the procedure adopted by the Court below in not following the salutary directive of the Supreme Court as to the manner of coping with the documents which are objected to by a party has not been properly applied.
10. In the circumstances, the order of the Court below is set aside and the Civil Revision Petition filed by the petitioner is allowed. The trial shall resume and the extent of reliance and extent of admissibility of the documents will be still open to the parties to be addressed at the time of argument. Several illustrations and observations made in the judgment shall not be used by the defendant to take away any right of the plaintiff to contend that these two documents cannot be relied on or the documents are not true.
11. Subject to the above, the Civil Revision Petition is allowed. No costs.
-09-2008 Index:Yes Website:Yes VJY/DP To The District Munsif-cum-Judicial Magistrate at Ambattur.
K.KANNAN,J VJY/DP Pre-Delivery order in CRP.PD.NO..1212 of 2008 30-09-2008