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15. Whereas, learned counsel for the respondents contented that when a document is admitted and marked as exhibit, it cannot be questioned except under Section 61 in view of interdict contained under Section 36 of Indian Stamp Act.

16. The agreement of sale is dated 26.06.2012 and it is undisputedly a possessory agreement of sale as contended by the plaintiff in para 2 of the plaint. However, delivery of possession is disputed in the written statement while contending that the 4th defendant is in possession and enjoyment of the property. On the face of Agreement of Sale, which is possessory contract of sale subsequent to amendment of Explanation to S.No. 47A, Schedule 1- A of the Indian Stamp Act, which came into force in the year 1986. According to it, when a contract is followed by delivery of possession or evidenced by delivery of possession, stamp duty is to be paid as if it is a sale under S.No.47A of Schedule 1-A of the Indian Stamp Act. If the contention of the revision petitioner is accepted that the document is a possessory contract or agreement of sale, it is liable to be stamped under S.No. 47A of Schedule 1-A of the Stamp Act. But it was executed only on a stamp paper worth Rs.100/- and the nomenclature is sale deed for Rs.14,20,000/-, there is a reference about delivery of possession in para 3 at page 3 of plaint. Even if it is treated as contract or agreement, it is admissible in evidence subject to payment of penalty and stamp duty as per the provisions of the Stamp Act. When the possessory contract or agreement is not sufficiently stamped it is inadmissible in evidence. No doubt, Section 36 of the Act created an interdict to raise an objection about admissibility of document, once admitted, except under Section 61, it is the duty of the Court to apply its mind about the admissibility and determine judicially but the Presiding Officer failed to look into the admissibility of the document for want of stamp duty and penalty. Putting signature on the stamp of marking on the document cannot be considered as admission of a document in evidence. When similar issue came up before Division Bench of this Court in W.P.No.29434 of 2013, dated 12.02.2014, placing reliance on judgment of Apex Court in R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P.Temple and another and Ram Rattan (dead) by legal representatives v. Bajranlal and others drawn distinction between admitting in evidence and marking of document. Marking of a document is only for convenient reference, whereas, admitting document is taking the document as evidence after applying judicial mind. In view of principle laid down in R.V.E.Venkatachala Gounders case (11th supra) and Ram Rattan (dead) by LRs case (12th supra), the parties can raise objection as to admissibility of document and mere marking of document for convenience of reference would not preclude the parties to raise objection as to the admissibility. In R.V.E.VENKATACHALA Gounders case (11th supra) the Apex Court is of the view that merely because a document is marked as exhibit an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. Similarly in Ram Rattrans case (12th supra) the Supreme Court is of the view that when the document was tendered in evidence by the plaintiff while in witness box, objection has been raised by the defendants that the document was inadmissible in evidence as it was not only insufficiently stamped, but also for want of registration, it was obligatory upon the learned trial judge to apply his mind to the objection raised and decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. However, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the Court to decide the objection. The endorsement made by the learned trial Judge that objected, allowed subject to objection, clearly indicates that when the objection was raised, it was not judicially determined and the document was tentatively marked and in such a situation, Section 36 would not attract. Though facts are different, the law laid down by the Courts time and again is that to admit a document in evidence the Court has to apply its mind and decide the admissibility of document in evidence, judicially, mere marking for convenience of reference itself would not amount to admitting the document by applying judicial mind and it is not a judicial determination as to the admissibility of document in evidence. Section 35 created clear embargo against acting upon insufficiently stamped document for any purpose. Any purpose would include collateral purpose. Even if both parties gave consent for marking insufficiently stamped document, it shall not be act upon, more particularly to enforce the right of parties under contract of sale, unless it falls under any clauses of proviso. The present document does not fall within any of the clauses of proviso to Section 35 of the Act, when document shall not be acted upon admitting the same by consent would mean that it is the duty of the Court to decide admissibility of document in evidence judicially.

17. In such situation, the bar under Section 36 of the Act would not come in the way of the parties to raise an objection as to the admissibility of the document. In the present case except affixing stamp giving numerical number to the possessory contract of sale as Ex.A.1, signing thereon by officer, nothing discloses about the judicial determination of admissibility of possessory contract of sale. The provisions of Stamp Act are fiscal in nature and such provisions have to be construed strictly, at the same time, it is the duty of the office to decide or determine judicially about admissibility of the document, irrespective of objection to avoid loss of revenue to the State. In the absence of any judicial determination about admissibility of the document, the same can be questioned at a later stage though stamp is affixed marking the document as exhibit.

18. Learned counsel for the petitioner mainly placed reliance on Omprakashs case (4th supra) to support his contention. Where the Apex Court held that at the time of considering the issue, the question of admissibility of document, it is the recitals therein which shall govern the issue. It does not mean that the recitals in the document should be conclusive, but for the purpose of admissibility of the document it is the terms and conditions incorporated therein which shall hold the field and when the document discloses acknowledgment of payment of part of consideration and delivery of possession to the purchaser by the seller based on those recitals, the Court has to judicially determine the admissibility of the document in evidence irrespective of the contentions raised in the written statement. Even if the principle laid down in the above judgment is applied, the admissibility of Ex.A.1 can be challenged at any stage when the trial Court did not judicially determine the question of admissibility of document.

25. Here there is an endorsement on the reverse of possessory contract of sale consisting the details under Order 13 Rule 4(1)(A) to (C), 1(D) is absent. Therefore, the document cannot be said to be admitted after judicial determination, in such a case, exercising power under Order 13 Rule 3 CPC, the Court can reject any document which it considers irrelevant or in-admissible, recording reasons.

26. In the present case, the trial Court did not record any statement as to the admissibility as required under Order 13 Rule 4(1)(d) and there was absolutely no judicial determination about the admissibility of possessory contract of sale, in evidence. In such a case, when an objection was raised, the Court is under obligation to record reasons in admitting the document in evidence or reject the same even if it is marked for numerical purpose or for convenience of reference, by following the procedure under Order 13 Rule 3 CPC. The trial Court in the present case, only on the ground that once the document is marked as exhibit, the same cannot be challenged in view of interdict contained under Section 36 of Indian Stamp Act. The trial Court did not draw distinction between marking of document for convenience of reference and judicial determination of admissibility of the document, as no objection was raised as to the admissibility of the document at the time, it was marked, committed an error in considering the objection raised by the learned counsel for the petitioner i.e. 4th defendant before the trial Court.