Madras High Court
K.Subramanian vs K.Aranganathan (Deceased) on 27 July, 2018
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS Order Reserved on : 16.07.2018 Order Pronounced on 27.07.2018 CORAM: THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY C.R.P.(NPD).No.1210 of 2012 and M.P.No.1 of 2012 1. K.Subramanian 2. K.Sambanatham 3. K.Balamurugan ... Petitioners Vs. 1. K.Aranganathan (deceased) 2. K.Sivasankaran (2nd respondent not necessary party in CRP hence given up) 3. Kalaimani 4. A.Karthik Rajan (Minor) ... Respondents Respondents 3 & 4 are brought as legal representatives of the deceased first respondent as per Court order dated 25.04.2016 made in CMP.No.582/2016 by MVMJ Civil Revision Petition filed under Article 227 of the Constitution of India praying to set aside the order in memo dated 28.09.2011 in O.S.No.346 of 2004 on the file of the 1st Additional District Munsif, Virudhachalam and allow the present Civil Revision. For Petitioner : Mr.T.Meganathan For Respondents : Mr.S.N.Ravichandran for R3 & R4 O R D E R
Challenging the order in memo dated 28.09.2011 in O.S.No.346 of 2004 on the file of the 1st Additional District Munsif, Virudhachalam, the petitioners have filed the above Civil Revision Petition.
2. According to the petitioners/defendants 1 to 3, the brief facts of the case is that the suit was filed for the purpose of declaration and permanent injunction. When the suit is pending for trial the plaintiff/deceased first respondent herein has filed an undated memo before the trial Court for the purpose of seeking permission to pay the deficit stamp duty with penalty on the purported release deed dated 19.06.1990, as the same was unregistered and the said deed was not properly stamped.
3. On the other hand, the petitioners/defendants 1 to 3 made objection on the part of calculation of the deficit Court fee. The plaintiff has already filed a petition in I.A.No.2955 of 2004 in O.S.No.346 of 2004 seeking permission to pay the deficit stamp duty with penalty on the release deed dated 19.06.1990 and the same was dismissed. Against dismissal, CRP No.2180 of 2004 was filed and the same was dismissed. Subsequently, the respondent filed a memo before the lower Court by wrongly interpreting the order of this Court passed in CRP.No.2180 of 2004. After hearing both parties, the lower Court passed the impugned order in the undated memo permitting the plaintiff/deceased first respondent herein to pay the entire stamp duty along with penalty till date.
4. Aggrieved by the above said order passed by the lower Court on the undated memo filed by the plaintiff/respondent, the petitioners/defendants 1 to 3 herein have preferred the present civil revision petition. During the pendency of this revision, the deceased first respondent died and his legal heirs have been impleaded as R3 and R4.
5. Now the issues for consideration in the present case are as follows:-
1.Whether entertaining the memo filed by the plaintiff/respondent and permitting them to pay the stamp duty by the lower Court is proper?
2.Whether the order passed by this Court in CRP.No.2108 of 2004 mandates the lower Court to consider by way of memo for probating the value of the unregistered document dated 19.06.1990?
6. The learned counsel for the petitioners stated that the lower Court should not have passed any order by way of memo and no provisions of the Civil Procedural Code permits the lower Court to entertain the memo of the parties to impound the document and send for proper adjudication of the stamp duty to stamp authorities. Further he stated that for the same issue I.A.No. 2955/2004 has been filed and the same was rejected by the lower Court vide order dated 05.11.2004. Against that order the respondents herein have preferred CRP(PD) No.2108/2004. The relevant portion of the order passed by this Court in the said CRP on 11.04.2005 has been extracted hereunder:-
4. For the reasons stated above, though I am not inclined to interfere with the order of the Court below, it is clarified that it is open to the petitioner to rely on the said document and mark the same during trial. At the time of marking the said document, it is open to the respondents to raise an objection about the admissibility of the said document as evidence even for collateral purpose. The trial Court shall consider the probating value of the said document and pass appropriate orders, if the document is to be marked during trial.
7. This Court only permitted the plaintiff/respondent to rely on the said document and mark the same during trial and further this Court, in the said order permitted the respondent therein (petitioners herein) to raise objections about the admissibility of the said document as evidence, even for collateral purpose. The petitioners further interpreted the order stating that this Court clearly permitted the petitioners herein to make objections about the admissibility of the document even for collateral purpose which means the document should be marked and taken into consideration only as a secondary evidence and used for collateral purpose. Therefore the question of probating the documents by paying deficit stamp duty before the Sub Registrar does not arise.
8. On the other hand the learned counsel for the respondents submitted that this Court clearly permitted the lower Court to mark the documents at the time of trial and permitted the petitioners herein to make objections at the time of marking the documents for collateral purpose. Further, this Court permitted the lower Court to consider the probating value of the said documents and pass appropriate orders, if the documents are marked during trial. Therefore this civil revision petition should be dismissed.
9. In this regard, the learned counsel for the petitioners referred to an unreported judgment of this Court in [R.Meshaak Vs.G.Devasitham], dated 28.10.2008 wherein, in paragraphs 9 and 10, it is held as follows:-
9. Added further, this Court points out that when respondent/petitioner/plaintiff has filed I.A.No.1946 of 2007 earlier and has got the relief for appointment of an Advocate Commissioner to logical corollary one would expect the respondent/plaintiff to file another IA seeking the relief required either as an interim one or otherwise as he deems it fit in the circumstances of the case. However, such a practice has not been resorted to by the respondent/petitioner/plaintiff in the instant case on hand. But the counsel for the respondent/petitioner/plaintiff has filed memo before the trial Court on 13.12.2007 (on behalf of the respondent/plaintiff) and has prayed for a direction being issued to the Advocate Commissioner to note down the physical features and to file interim report of the suit house etc. If at all any relief is required to be obtained from the Court of law, it is for the party or a litigant to approach necessary application before the Court in the manner known to law. In the event of such an application being filed, then the Court may order notice to the other side so as to hear the version put forward by them.
10. On the facts and circumstances of the case which float on the surface in the present case, this Court is of the considered view that the Memo dated 13.12.2007 filed by the Advocate on behalf of the respondent/plaintiff is not proper and this Court further opines that the proper procedure for the respondent/plaintiff is to file an appropriate application in the manner known to law for seeking necessary remedy which he requires. In short, the Advocate cannot take the role of a litigant and file a memo seeking relief which the party desires to obtain from the Court of law. In that view of the matter, this Court is of the considered view that the order passed by the trial Court in the Memo dated 20.12.2007 is not correct and valid in the eye of law and resultantly this Court allows the civil revision petition in the interest of justice.
10. By referring the above judgment, the learned counsel appearing for the petitioners submitted that if at all any relief is to be obtained from the Court of law, it is for the respondents to file necessary application before the Court in the manner known to law. In the present case no such application was filed. Therefore the order passed in memo should be rejected.
11. Further, the Supreme Court reported in AIR 1988 SC 881, in the case of Roshan Singh and others V.Zile Singh and others it is held as follows:-
that when a document does not effect a partition but merely records the nature of the arrangement arrived at as regards the decision of the remaining property, it does not requires registration. Further, the Hon'ble Supreme Court stated that a document though unregistered can however be looked into for the limited and collateral purpose of showing that the subsequent division of properties allotted was in pursuance of the original intention to divide.
12. By referring the above judgment of the Supreme Court the learned counsel appearing for the petitioners states that the unregistered document can be looked into only for collateral purpose and not for anything else.
13. Further as held by the Supreme Court reported in 2005(2) CTC 385 in the case of Amudha and others Vs. K.Jeyaraman and another wherein, in paragraph 23, it is held as follows:-
Further, it is relevant to mention that subsequent revalidation of the document by paying stamp duty and penalty as contemplated under Sections 33 and 40 of the Indian Stamp Act, 1899 during the proceedings before the lower Appellate Court cannot at any stretch of imagination cure the defects as pointed out above and therefore this Court is of the considered view that the finding rendered by the lower appellate Court on this aspect of the matter has to be upheld.
14. In the present case, original application No.2955 of 2004 was filed before the lower Court to send the unregistered documents dated 19.06.1990 for the purpose of adjudicating of stamps before the same authority. After hearing the arguments, the lower Court dismissed the said application by order dated 05.11.2004 against that order CRP No.2108 of 2004 was preferred and the said CRP was also dismissed by upholding the order of the lower Court. Further this Court observed that unregistered document can be used for collateral purpose at the time of trial permitting the respondents herein to make objections when these document are used for collateral purpose. So, taking into consideration, this Court passed an order in CRP No.2108 of 2004 allowing to mark the unregistered documents at the time of trial only for collateral purpose and not for using anything else, it is clear that for using the unregistered documents for collateral purpose, it is not necessary to impound and send the same for the purpose of adjudication and it will be considered only as secondary evidence. Hence, there is no need for the lower Court to send the documents for adjudication before the Stamp authorities to pay the stamp duty and penalty by interpreting the order passed by this Court in CRP No.2108 of 2004.
15. The lower Court wrongly entertained the memo filed by the plaintiff to impound the document and send for the stamp duty adjudication for payment of stamp duty and penalty before the Stamp Authorities. There is no provision for the plaintiff to file anything by way of memo for a substantial relief which is also not permitted by any of the provisions of the CPC and the same is unknown to law. The respondents herein what he was not able to do by following proper procedure by way of application, obtained an interlocutory order by way of filing the memo, which is unknown to law. Therefore, the practice followed by the plaintiff by filing a memo and getting the order is unlawful and the lower Court is not proper in entertaining the same. Accordingly issue No.1 & 2 are answered as above.
16. Therefore the order passed by the lower Court is set aside as the same is not lawful in view of the observations made by this Court in CRP.No.2180 of 2004 in paragraphs No.4 & 5, as this Court made it clear that the said documents can be used only for collateral purpose at the time of evidence.
17. Accordingly, the present Civil Revision Petition is disposed of, with the above directions. No costs.
27.07.2018 Index : Yes/No Internet : Yes/No Speaking order/Non speaking order dpq KRISHNAN RAMASAMY,J. dpq To The 1st Additional District Munsif, Virudhachalam Pre-delivery order made in C.R.P.(NPD).No.1210 of 2012 and M.P.No.1 of 2012 27.07.2018