Madras High Court
Radhakrishnan And P. Periyasami vs Durainathan Palanisamy on 26 February, 2007
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
ORDER S. Ashok Kumar, J.
1. As against the dismissal of the I.A.No:43 of 2005 field by the revision petitioners, defendant in the suit to reject Ex.A.1 Partition Deed, by the learned District Munsif, Dharapuram, this revision has been preferred.
2. According to the defendants when the affidavit was filed by the plaintiff to file the said document, the counsel for the defendants made an endorsement that he takes notice of the same. But at the time of filing of the said document in the court the Junior Counsel due to oversight has not made any objection and therefore the same has been marked. Since it is an unregistered and unstamped document, the same cannot be looked into or marked for evidentiary purpose. Thus Ex.A.1 partition deed suffers for non compliance of Section 17 of the Indian Stamps Act as well as Section 35 of the Indian Registration Act.
3. The respondent/plaintiff contested the said application by filing a counter stating that the defendants' counsel has not made any objection at the time of filing of the affidavit or at the time of marking the said document. Having kept quiet, the application filed to reject the said document after closure of plaintiff's evidence, it is time barred since trial has commenced. Further, an unstamped and unregistered document can be filed for collateral purpose as decided by various High Courts and Supreme Court.
4. The learned District Munsif, Dharapuram, after considering the averments of the parties and rival submissions of the learned Counsels, dismissed the Interlocutory Application holding that such application has been filed very belatedly when the matter is posted for cross examination and also merely because the document is unregistered and not properly stamped the same cannot be rejected in toto since it could be looked into for collateral purpose. Aggrieved over the same, the present revision has been filed.
5. Learned Counsel for the revision petitioners contended that Ex.A.1, which is unstamped and unregistered is inadmissible in evidence both under Indian Stamps Act and Registration Act. Further, the plaintiff having got full knowledge of the defendants' serious objections in admitting and marking the said document as Exhibit, adopted an indirect device and marked it as Ex.A.1 through his proof affidavitby misleading the court. Learned Counsel further contended that the lower court before admitting the said document has to find out whether the document purported to be admitted and marked as exhibit in evidence is required to be stamped and registered and then to find out whether the plaintiff has paid the stamp duty and penalty to take the same even for collateral purpose.
6. A perusal of the proceedings would show that the trial court refused to reject Ex.A.1 document because at the time of marking Ex.A.1 document, which is admittedly an unstamped and unregistered document, the defendants have not made any objection and therefore the same cannot be scrapped. The fact that Ex.A.1, document was marked only through proof affidavit and not by examining the witness is not in dispute. The amendments to Code of Civil Procedure came into force on and from 1.7.2002. Before that, a document could be marked only in the Chief Examination of a witness. But after the introduction of the amendment, as per the new provisions, a document can be marked even by proof affidavit. In the present case, according to the revision petitioners their counsel made such objections at the time of filing of the proof affidavit and also made an endorsement that they are taking notice of the same. But at the time of marking, since the Junior Counsel was not well aware of the consequences, he did not raise any objection and that is how the document came to be marked. Therefore, the position before coming into force of the newly amended Code was that the opposite party will have a chance to object that the document should not be admitted in evidence because of the non registration or deficiency in payment of stamp duty. But as per the newly amended CPC, a document can be marked through proof affidavit. In such situation, the opposite party will not or may not have the opportunity to object the same at the time of marking. In this case also the disputed document was marked as Ex.A.1 only through proof affidavit. When the witness was called for cross examination, the admissibility of the document was raised and therefore, the defendants also taken out the Interlocutory Application to reject the document. But the trial court dismissed the application.
7. Learned Counsel for the revision petitioners relied upon the judgement of this Court in Indirani v. Seetharaman reported in 2005 (4) MLJ 337, wherein this Court held that as long as Section 35 of the Stamp Act is available in the Statute, no document shall be admitted in evidence, if it is not properly stamped, and if already not stamped, then stamp duty should be paid with penalty as prescribed by the authority. He also relied on the judgement in Ram Rattan v. Bajrang Lal wherein a Three Judges Bench of the Hon'ble Supreme Court held that when a document is tendered in evidence by the plaintiff while in witness box and objection is raised by the defendants that the document is inadmissible in evidence as it is not duly stamped or for want of registration, it is obligatory upon the trial Judge to apply his mind to the objection raised and to decide the objection in accordance with law. In the above decision, the trial court admitted and marked the document by recording the objection and their Lordships held that such recording 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. In the present case also taking notice of the same it is averred that the defendants have objected for marking of Ex.A.1 partition deed.
8. The decision of this Court in N. Karuppan v. Periyapandi and Anr. 2006 1 TLNJ (Civil) 226, following the decision of the Supreme Court reported in 2001 (3) SCC 1 Bipin Shantilal Panchal v. State of Gujarat and Anr. is to the effect that the trial court could defer its decision on the admissibility of the disputed document at the stage of trial after marking the same tentatively and it would be open to the petitioners to raise all questions regarding the proof and admissibility of the document and whether the party who is relying on the document is using it not for collateral purpose and these objections will be decided by the trial court appropriately. However, the Supreme Court in 2001 (3) SCC 1, cited supra, made it clear that if the objection relates to deficiency of stamp duty of a document, then the court has to decide the objection before proceeding further. For all other objections, the procedure suggested viz., marking the same tentatively as an exhibit subject to such objections to be decided at the last stage in the final judgment can be followed.
9. But in the present case, the trial court straight away admitted and marked the disputed document Ex.A.1 without even directing the plaintiff to pay the necessary deficit stamp fee with penalty as laid down by this Court in many of the decisions. Therefore, the trial court has committed an error in marking Ex.A.1, partition deed, which is inadmissible unless required stamp duty with penalty is paid on the said instrument. Therefore the Ex.A.1 partition is deed is liable to be rejected from evidence.
10. In the result, the CRP is allowed, setting aside the order of the learned Trial Judge, made in I.A. No. 43 of 2005 in O.S. No. 13 of 2003 and directing the trial court to reject the Ex.A.1 from its consideration. However this will not preclude the plaintiff from marking the said document again on payment of required stamp duty with penalty, if the provisions of the Code so permits.
11. Consequently, connected CMP is closed. No costs.