Karnataka High Court
Sri. Joseph Alfred Lewis @ Alfred Lewis vs Sri. N.C. Yalakappa on 11 April, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.90/2017 (GM-CPC)
BETWEEN:
1. SRI JOSEPH ALFRED LEWIS
@ ALFRED LEWIS
S/O LATE SEBASTIAN LAWRENCE
LEWIS, AGED ABOUT 52 YEARS
2. MRS. WILMA HELEN LEWIS
@ WILMA LEWIS
W/O JOSEPH ALFRED LEWIS
@ ALFRED LEWIS
AGED ABOUT 50 YEARS
3. PRINCY SHINEY LEWIS
D/O JOSEPH ALFRED LEWIS
@ ALFRED LEWIS
AGED ABOUT 23 YEARS
4. PRAMITHA LEWIS
D/O JOSEPH ALFRED LEWIS
@ ALFRED LEWIS
AGED ABOUT 21 YEARS
5. PRAJWAL LEWIS
S/O JOSEPH ALFRED LEWIS
@ ALFRED LEWIS
AGED ABOUT 18 YEARS
PETITIONER NO.5 IS MINOR
REPRESENTED BY HIS NEXT FRIEND
MOTHER/NATURAL GUARDIAN
MRS. VILLAHELEN LEWIS
@ WILMA LEWIS
2
ALL ARE RESIDING AT
HOSPET ROAD
MAGADI TOWN-562120
MAGADI TALUK
RAMANAGARA DISTRICT.
... PETITIONERS
(BY SRI.DAYALU K N, ADVOCATE)
AND:
SRI N.C. YALAKAPPA
S/O LATE ANGADI CHANNAPPA
AGED ABOUT 59 YEARS
R/O NETHENAHALLI
KASABA HOBLI
MAGADI TALUK-562120
RAMANAGARA DISTRICT.
... RESPONDENT
(BY SRI NITISH FOR SRI.K.V. NARASIMHAN,
ADVOCATES)
THIS WRIT PETITION IS FILED UNDER ARTICLES 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER 22.11.2016 VIDE ANNEXURE-E & F IN
MARKING THE IN ADMISSIBLE DOCUMENT (SALE
AGREEMENT DATED 5.11.2014) IN O.S.NO.228/2015 ON
THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, MAGADI,
BANGALORE.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER
Heard Sri. K.N.Dayalu, learned Advocate appearing for petitioners and Sri. Nitish learned Advocate appearing on behalf of Sri. K.V. Narasimhan for respondent.
2. Petitioners are defendants in O.S.No.228/2015 and order dated 22.11.2016 - Annexure - F marking the agreement of sale dated 05.03.2014 as Ex.P-1 subject to objections is called in question.
3. It is the contention of Sri. Dayalu, learned Advocate appearing for petitioners that trial Court ought to have decided the admissibility of the document in evidence and if it is found that said document is improperly stamped which according to him was, it ought to have impounded the same and called upon the plaintiff to deposit the duty and penalty and it should not have postponed the issue of such determination to a later date.
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4. Per contra, Sri. Nitish, learned Advocate appearing for respondent would support the order in question and contends that no opinion has been expressed by the trial Court with regard to the admissibility or otherwise of the document and mere deferring of the decision with regard to admissibility would in no way prejudice the case of petitioners. He would also contend that a Co-ordinate Bench of this Court in the case of RIYAZ KHAN & OTHERS vs MODI MOHAMMED ISMAIL & OTHERS reported in ILR 2002 KAR. 3369 has held that when objections are raised for admitting the document in evidence and document is admitted or marked subject to such objections, it clearly indicates at the stage of objections raised, it was not judicially determined and document was tentatively marked and taking a decision at a later stage cannot be said to be impermissible or without jurisdiction. Having said so, a caveat has been added after taking note of the judgment of Hon'ble Apex Court in the case of BIPIN SHANTILAL PANCHAL VS. STATE OF GUJARAT reported in 2001 Crl.LJ 1254 whereunder 5 Hon'ble Apex Court has held that admissibility of a document if objected when being marked, the Court should tentatively mark the document as Exhibit and determine the objections at the last stage in the final judgment, which was in the context of Criminal cases and yet, it was held by the Hon'ble Apex Court that exception carved regarding admissibility of a document where objection is based on deficient stamp duty, then such Court has to decide the said objection before proceeding further. Co-ordinate Bench in RIYAZ KHAN'S case referred to supra has observed as under:
"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 6 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.(AIR 1966 SC 1631). 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."
5. This Court in the case of SMT.HUCHAMMA AND OTHERS vs SRI CHANDRASHEKAR @ HANUMANTHARAJU reported in 2014 (3) KCCR 2088 has held that provisions of Sections 33 to 35 of the Karnataka Stamp Act cannot be read in isolation and Section 36 of Indian Stamp Act is in pari materia with Section 35 of Karnataka Stamp Act and a statutory duty is cast on the Court to examine the instrument which is tendered in evidence before it is received in evidence, irrespective of a party to the proceedings 7 raising any objection regarding its marking on the ground that it is insufficiently stamped.
6. In the light of the above position of law, trial Court i.e., Court of Senior Civil Judge (Sr.Dn), Magadi which is adjudicating O.S.No..228/2015 is hereby directed to adjudicate the admissibility or otherwise of the Agreement of Sale dated 05.03.2014 (which has been tentatively marked as Ex.P-1 and subject to objections of defendants) as to its admissibility or otherwise in evidence, expeditiously, at any rate, within one month from the next date of hearing after affording opportunity to both parties.
Accordingly, writ petition stands disposed of.
SD/-
JUDGE *sp