Madras High Court
M.Periyakaruppan vs Nachiyappan on 29 January, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated:29/01/2008 CORAM THE HON'BLE MR.JUSTICE G.RAJASURIA C.R.P.PD(MD)No.876 of 2006 and M.P(MD)No.1 of 2006 1.M.Periyakaruppan 2.K.Suppiah ... Petitioners/Defendants Vs. 1.Nachiyappan 2.Palaniyappan ... Respondents/Plaintiffs PRAYER Petition filed under Article 227 of the Constitution of India against the fair and decreetal order dated 30.08.2006 passed in I.A.No.189 of 2006 in O.S.No.104 of 2005 on the file of the learned Principal District Munsif, Karaikudi. !For Petitioners ... Mr.T.Srinivasa Raghavan ^For Respondents ... Mr.R.Anand (No appearance) :ORDER
This Civil Revision Petition is focussed as against the fair and decreetal order dated 30.08.2006 passed in I.A.No.189 of 2006 in O.S.No.104 of 2005 on the file of the learned Principal District Munsif, Karaikudi.
2. Heard the learned counsel appearing for the petitioners. Despite printing the name of the learned counsel for the respondents, no one appeared.
3. The parties are referred to herein according to the litigative status before the trial Court.
4. A re'sume' of facts absolutely necessary and germane for the disposal of this Civil Revision Petition would run thus:
The plaintiffs two in number filed the suit in O.S.No.104 of 2005 as against the two defendants, who are the revisions petitioners herein, for declaration that the suit property belongs to them and for consequential injunction, based on the consent letter given by their father, the oral partition, which took place before Panchayatars, and which was subsequently got reduced in the form of the impugned document dated 23.02.1987.
5. The plaintiffs, in paragraph No.3 of their affidavit in I.A.No.189 of 2006 filed before the Principal District Munsif Court, Karaikudi, averred that the impugned document was filed along with the suit and when it was about to be marked, there was objection from the defendants's side on the ground of non- registration and non-stamping of it as per law; thereupon the said I.A.No.189 of 2006 was filed by the plaintiffs praying the Court to mark the document.
6. Counter was filed by the respondent/ defendants on the ground that the document should not be considered by the Court for marking as it was not a registered and stamped one and even for collateral purpose, it could not be relied on.
7. The trial Court ultimately allowed the petition. The last paragraph of the order of the trial Court is extracted here under for readily to be observed as to its apparent and obvious mistakes found therein:
"After analysing both side points raised by the both side learned counsel, it is found that the petitioner is not seeking the relief on the basis of the unregistered partition deed, but he wants to mark the above said documents for collateral purpose. Any have even though it is an unregistered document and at the same time the petitioner wants to mark the document for collateral purpose, but even for that collateral purpose, the stamp duty penality has to be paid since the above said document is an unregistered one. Under the above said circumstances, this court decides that the unregistered partition deed can be marked only on the payment of stamp duty penality.
In the result, on the payment of stamp duty penalty for the above said document, this petition will be allowed".
8. Being aggrieved by and dissatisfied with the order of the lower Court, the defendants filed this Civil Revision Petition on the grounds inter-alia thus:
The lower Court was wrong in holding that the impugned unregistered and unstamped document could be marked after the collection of stamp duty. The lower Court failed to note the plaintiff's attempt to circumvent Section 17(1)(b) of the Registration Act and Section 35 of the Stamp Act. The suit itself was filed for declaration based on the impugned document, which is inadmissible in evidence and it cannot be used for collateral purpose also. Accordingly, they prayed for setting aside the order of the trial Court.
9. Heard the learned counsel for the petitioners/defendants.
10. At the outset, I would like to place reliance on the following decisions of this Court:
(i) A.C.Lakshmipathy v. A.M.Chakrapani Reddiar & 5 Others reported in 2001-1-L.W.257.
(ii) Karuppannan v. Thavasiappan and Another reported in (2006)4 M.L.J.706.
(iii) R.Deivanai Ammal (Died) and others v. G.Meenakshi Ammal and others reported in 2005-1-L.W.343.
(iv) Amudha and others v. K.Jeyaraman reported in 2005-3-L.W.283.
11. The perusal of the aforesaid Judgments would make the point clear that when a document is filed and attempted to be marked, it has to be seen by the Court as to whether it requires registration or not and it should also be seen as to whether proper stamp duty was paid on it. As per Section 35 of the Stamp Act, it is the duty of the Court, at the time of marking any document to assess the sufficiency of the stamp duty paid. If a document is unstamped or insufficiently stamped and unregistered, then it is the duty of the Court to impound and issue necessary direction in that regard. On payment of necessary stamp duty and penalty, the Court could mark it subject to objections relating to its admissibility.
12. At this juncture, I would like to refer fruitfully to the decisions of the Hon'ble Apex Court in Bipin Shantilal Panchal v. State of Gujarat and another reported in (2001)3 SCC and in Peteti Subba Rao v. Anumala S.Narendra reported in (2002)10 Supreme Court Cases 427. Certain excerpts from the decision in Bipin Shantilal Panchal v. State of Gujarat and another reported in (2001)3 SCC would run thus:
"It is an archiac practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. Such practices when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. (Para 13) When so recast, the practice which can be a better substitute is this:
Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. There is no illegality in adopting such a course.
(Para 14) However, if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.
(para 14) The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. This measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. (Para 15) Therefore, the above is made as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence". (Para 16) An excerpt from the decision in Peteti Subba Rao v. Anumala S.Narendra reported in (2002)10 Supreme Court Cases 427would run thus "Chapter IV of the Indian Stamp Act contains provisions regarding "instruments not duly stamped". It is Section 35 which falls under the said chapter which empowered the trial court to direct the party (who wants the documents to be acted upon) to pay the stamp duty (or the deficient portion) together with a penalty of rupees fifteen, or, when ten times the amount of the proper duty or deficient portion thereof exceeds fifteen rupees, of a sum equal to ten times such duty or portion. This is for the purpose of enabling the document to be admitted in evidence. In such a situation the document would be admitted only on payment of the aforesaid sum. In a case where the party is not willing or he cannot afford to pay the said sum the court has to adopt the procedure envisaged in Section 38(2) of the Act. That sub-section is with reference to the action which the trial court is, perforce to adopt under Section 33(1) of the Act".
13. The Hon'ble Apex Court in the aforesaid decision looked askance at the procedures adopted by the lower Courts in passing final orders adjudicating the admissibility of documents at the time of marking itself and thereby leaving the parties to litigate upto the Hon'ble Apex Court regarding the admissibility. The Hon'ble Apex Court also made it clear that the admissibility or otherwise of the document should not be adjudicated finally. But it should be marked subject to objection and the final adjudication on that aspect should be undertaken along with the main matter. There should not be any peaceful adjudication except relating to stamp duty. In this case, the lower Court was not justified in giving a finding to the effect that for collateral purpose the document could be relied on. Hence, interference of this Court is warranted and such a finding by the lower Court is hereby set aside.
14. However, the trial Court was right in attempting to collect the stamp duty. In the order extracted above, the trial Court should have clearly indicated that the Court impounds the document and thereupon the procedure contemplated relating to document impounded, should have been adhered to. No doubt, these are all technicalities and the lower Court is expected to follow it strictly as otherwise it will lead to unnecessary offshoot litigations. While disposing of this matter, I would like to pass the following direction:
The trial Court shall impound the document at the first instance and follow the procedures relating to impounding of document. After the collection of stamp duty and penalty, the document could be marked subject to recording the objections of the defendants without deciding finally whether it is marked for collateral purpose or for being relied on as substantive piece of direct evidence.
15. The learned counsel for the petitioners/ defendants would appositely, correctly and convincingly submit placing reliance on Order VII, Rule 14 of C.P.C. to the effect that once a document has not been filed along with the plaint then as per order VII, Rule 14 of C.P.C., a separate petition seeking leave of the Court has to be filed for reception of document and thereafter alone the rest of the things should follow. However, in this case in paragraph No.2 of the affidavit of the plaintiff, it is found set out as though the impugned document was filed earlier along with the plaint, but the factual position is not clear. However, I would highlight for future guidance of the Court that whenever any document is sought to be filed after the institution of the suit, barring marking of document during cross-examination, necessarily there should be an application seeking leave of the Court to file such document.
16. With the above observations, the Civil Revision Petition is disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
smn To The Principal District Munsif, Karaikudi.