Admissibility of Document - Stamp duty and Penalty sec.36 of Stamp Act - Agreement of sale - at the time of chief examination marked tentatively despite of objections as to stamp duty and penalty and registration - High court held that though tentatively marked , it can be opened and can be decided on merits and also further held that every objection must be decided at first instance without postponing the same later and as such the High court allowed the revision and set aside the orders of lower court = Sheikh Qutubuddin s/o. Shaik Ahmed and another... Revision Petitioners Goli Vishwanatham s/o. Mallesham and others.... Respondents = 2014 ( January Part ) judis.nic.in/judis_andhra/filename=10788

Admissibility of Document - Stamp duty and Penalty sec.36 of Stamp Act - Agreement of sale - at the time of chief examination marked tentatively despite of objections as to stamp duty and penalty and registration - High court held that  though tentatively marked , it can be opened and can be decided on merits and also further held that every objection must be decided at first instance without postponing the same later and as such the High court allowed the revision and set aside the orders of lower court =
 Suit is filed seeking declaration that the sale deeds dated 27.06.2001 and
24.07.2004 are null and void and that the plaintiffs are the owners of house
bearing G.P.No.7-71 (old), Padmavathi Nagar Colony, Khanapur Village and Mandal, 
Adilabad District; for mandatory injunction to remove illegal and unlawful
constructions made by the defendants; direction to defendants to vacate and hand
over the vacant and peaceful possession of the land admeasuring 144.49 square
yards in respect of the above premises;  and  direction to the defendants to pay
sum of Rs.5,000/- per month for unlawful and illegal occupation. =
it is treated as chief-
examination.   
Agreement dated 14.01.2003 is marked as Ex.A26 through P.w.9.  
Along with the above document, three other documents are marked as Exs.P27 to  
P29. 
4.      Petitioners objected for marking of the said documents.  
Taking note of
the objection, Senior Civil Judge marked the documents as Exs.A26 to A29 
recording that such marking is subject to objection raised by the counsel for
the defendants.  
This order is under challenge in this revision petition. =
whether the
trial Court erred in marking the document described as agreement dated 14.01.2003 as Ex.A26 without first considering the objection raised by the defendants on marking of such document. 
In Shyamal Kumar Roy, Supreme Court  
considered the contention to reopen issue of admissibility of a document where
initially no such objection was raised.  Supreme court held that having
consented to document being marked as an exhibit, party lost its right to reopen
the issue.  Supreme Court distinguished cases where an objection was raised at
the stage of marking of a document, but the concerned court noted "objected,
allowed subject to objection".  In such cases, it was held that Section 36 is
not attracted.
Supreme Court held, "objection as regards admissibility of a document, thus,
specifically required to be taken that it was not duly stamped.  On such
objection only the question is required to be determined judicially".
It is further held as under:
      "What was necessary was that the document should be marked in presence of 
the parties and they had an opportunity to object to the marking of the
document. The question of judicial determination of the matter would arise
provided an objection is taken what document is tendered in evidence and before
it is marked as an exhibit in the case.   ......... "
In Nori Srirama Sastri, this Court held that if objection is raised
regarding a document, which was sought to be marked, "it was the duty of the
Subordinate Judge to have decided the question as to the admissibility of the
documents objected to by the petitioner.  He ought not to have marked them
tentatively and reserved the question of the admissibility for arguments at the
final stage". 
In the instant case, one of the objections raised by the petitioners was
that the document dated 14.01.2003 is insufficiently stamped and, therefore, is
not admissible in evidence.   There is no discussion on the objections raised
and merits of such objections. No reasons are assigned.  Duty is cast upon the
trial Court to consider the said objection and pass a judicial order before
proceeding further in the matter. More particularly, when the trial Court
noticed that an objection was raised, it could not have postponed the issue of
deciding the validity of a document and ought to have decided then and there the
correctness of the objections before proceeding further.
20.     For the reasons aforesaid, the order impugned herein is set aside and the
Senior Civil Judge at Nirmal is directed to consider the objections raised by
the petitioners as with reference to the marking of the agreement dated
14.01.2013 as an exhibit and take a decision thereon before proceeding further.
21.     Accordingly, the civil revision petition is allowed.  No costs.


2014 ( January Part ) judis.nic.in/judis_andhra/filename=10788

THE HON'BLE SRI JUSTICE P.NAVEEN RAO      

CIVIL REVISION PETITION No.4744 of 2013  

22-01-2014

Sheikh Qutubuddin s/o. Shaik Ahmed and another... Revision Petitioners

Goli Vishwanatham s/o. Mallesham and others.... Respondents

Counsel for the petitioner :  Sri C.Naresh Reddy

Counsel  for the Respondents:  Sri P.Raghavendra Reddy,
counsel for respondents 2 to 4

<Gist :

>Head Note:

?Cases referred:

1.AIR 1957 AP 60
2.AIR 2001 SC 1158
3.AIR 1972 AP 373
4.1997 (5) ALT 628
5.2002 (5) ALD 660
6.2007(1) ALD 28 (SC)
7.2008) 4 SCC 530
8.(1995) 1 Mad.L.J. 457
9.(1978) 3 Supreme Court Cases 236


HONOURABLE SRI JUSTICE P.NAVEEN RAO          

CIVIL REVISION PETITION NO.4744 OF 2013    

DATE:     22 -01-2014

ORDER:
Revision petitioners are the defendant Nos.1 and 2 and respondents are the
plaintiffs in O.S.No.10 of 2005 on the file of Senior Civil Judge at Nirmal.
Petitioners assailed the order of the Senior Civil Judge, Nirmal dated
24.10.2013 admitting document marked as Ex.A26, which is an agreement dated  
14.01.2003.
2.      Suit is filed seeking declaration that the sale deeds dated 27.06.2001 and
24.07.2004 are null and void and that the plaintiffs are the owners of house
bearing G.P.No.7-71 (old), Padmavathi Nagar Colony, Khanapur Village and Mandal, 
Adilabad District; for mandatory injunction to remove illegal and unlawful
constructions made by the defendants; direction to defendants to vacate and hand
over the vacant and peaceful possession of the land admeasuring 144.49 square
yards in respect of the above premises;  and  direction to the defendants to pay
sum of Rs.5,000/- per month for unlawful and illegal occupation.
3.      In support of their relief, one of the documents relied upon by plaintiffs
is document dated 14.01.2003, which is an agreement between Goli Viswanatham and   
Dr. MD. Zaheer Ahmed and others.
Plaintiffs intend to mark this document as
Ex.A26 through one person, by name, Noor Jahan , who stood as prosecution  
witness no.9.
P.W.9 filed an affidavit before evidence is recorded and during
the course of the recording of evidence, P.W.9 affirmed the contents of the
affidavit already filed and in view of the same, it is treated as chief-
examination.   
Agreement dated 14.01.2003 is marked as Ex.A26 through P.w.9.  
Along with the above document, three other documents are marked as Exs.P27 to  
P29. 
4.      Petitioners objected for marking of the said documents.  
Taking note of
the objection, Senior Civil Judge marked the documents as Exs.A26 to A29 
recording that such marking is subject to objection raised by the counsel for
the defendants.
This order is under challenge in this revision petition.
5.      Heard learned counsel for petitioners Sri C.Naresh Reddy and learned
counsel for respondents Sri P.Raghavendra Reddy.
6.      Extensive submissions are made by the counsels on either side on the
merits of the document marked as Ex.A26.  In addition to the submissions on
merits, the principal contention urged by the learned counsel for the
petitioners is, the trial court erred in marking the document dated 14.01.2003
as Ex.A26 without deciding the objection raised by petitioners/defendants.
The
principal objection on marking the said document as an exhibit, by the
petitioners, is that the document is insufficiently stamped, it was not
registered and is not admissible in evidence.
7.      In support of his contention, learned counsel placed reliance on 1) Nori
Srirama Sastri Vs. Nori Lakshmidevamma and others1, 2) Bipin Shantilal Panchal 
Vs. State of Gujarat and another2, and 3) Sanjeeva Reddi Vs. Johanputra Reddi3.
8.      Learned counsel for the respondents submits that when the document was  
marked, no objection was raised by the defendants and since no objections were
raised and document is already marked, the present revision petition is not
maintainable.   Learned counsel further contends that right or wrong once a
document is marked, no court has jurisdiction to nullify the marking of the
document and, therefore, present revision petition is not maintainable.  Learned
counsel also made extensive submissions justifying the correctness of the
document in issue.
9.      In support of his contention, learned counsel for the respondents placed
reliance on 1) Dokka Joganna Vs. Upadrasta Chayadevi4,  2) Isra Fatima Vs.
Bismillah Begum and another5, 3) Shyamal Kumar Roy Vs. Sushil Kumar Agarwal6 and     
4) Thiruvengadam Pillai Vs. Navaneethammal and another7. 
10.     The point that arises for determination in this petition is
whether the
trial Court erred in marking the document described as agreement dated 14.01.2003 as Ex.A26 without first considering the objection raised by the defendants on marking of such document. 
11.     Though extensive submissions are made on the validity of the document in
issue and its relevance to the relief claimed in the suit, since suit is pending
adjudication by the trial Court, no opinion is expressed and the point for
consideration in this petition is confined to the order passed by the trial
Court on 24.10.2013 with reference to marking of a document even when an
objection is raised without considering and deciding the merit of such
objection.
12.     The principle deducible from the decisions  relied upon by the  counsel
for respondents is, if no objection is raised when a document is admitted, no
Court including the Appellate Court has jurisdiction to reopen the issue of
admission of such document.  Reliance was placed on Section 36 of the Indian
Stamp Act in support of such proposition.  In Shyamal Kumar Roy, Supreme Court  
considered the contention to reopen issue of admissibility of a document where
initially no such objection was raised.  Supreme court held that having
consented to document being marked as an exhibit, party lost its right to reopen
the issue.  Supreme Court distinguished cases where an objection was raised at
the stage of marking of a document, but the concerned court noted "objected,
allowed subject to objection".  In such cases, it was held that Section 36 is
not attracted.
Supreme Court held, "objection as regards admissibility of a document, thus,
specifically required to be taken that it was not duly stamped.  On such
objection only the question is required to be determined judicially".
It is further held as under:
      "What was necessary was that the document should be marked in presence of 
the parties and they had an opportunity to object to the marking of the
document. The question of judicial determination of the matter would arise
provided an objection is taken what document is tendered in evidence and before
it is marked as an exhibit in the case.   ......... "
13.     The above decisions do not come to the aid of the respondents. As evident
from the reading of order under challenge, objection was raised by the
petitioners and, therefore, it cannot be said that petitioners have consented
for admission of document.
14.     The decision relied by the learned counsel for the respondents in
Thiruvengadam Pillai  is not  relevant since the validity of the document is not
considered on merits.
Similarly, decision relied by the counsel for the
petitioner in the case of Sanjeeva Reddi is also not relevant as issue
concerning the validity of the document is not considered.    
15.     In Nori Srirama Sastri, this Court held that if objection is raised
regarding a document, which was sought to be marked, "it was the duty of the
Subordinate Judge to have decided the question as to the admissibility of the
documents objected to by the petitioner.  He ought not to have marked them
tentatively and reserved the question of the admissibility for arguments at the
final stage".  Learned Judge followed the earlier decision of Madras High court
in the case of  Devasikhamani Gounder Vs. Andamuthu Gounder8.  
16.     On an identical issue, in Bipin Shantilal Panchal, Supreme court held as
under:
"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.  In our  view  there is no
illegality in adopting such a course. (However, we make it clear that 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). (emphasis applied)."
17.     In the above decision, Supreme Court makes a distinction  and holds that
if an objection regarding maintainability of a document is raised on the ground
that there was a deficiency of stamp duty, the Court has to decide the objection
before proceeding further.
18.     In Ram Rattan (dead) by L.Rs. Vs. Bajrang Lal and others9,
Supreme Court held as under:
        ".... The court, and of necessity it would be trial Court before which the
objection is taken about admissibility of document on the ground that it is not
duly stamped, has to judicially determine the matter as soon as the document is
tendered in evidence and before it is marked as an exhibit in the case and where
a document has been inadvertently admitted without the court applying its mind
as to the question of admissibility, the instrument could not be said to have
been admitted in evidence with a view to attracting Section 36 (see Javer Chand
v. Pukhraj Surana,  reported in AIR 1961 SC 1655)."    

19.     In the instant case, one of the objections raised by the petitioners was
that the document dated 14.01.2003 is insufficiently stamped and, therefore, is
not admissible in evidence.   There is no discussion on the objections raised
and merits of such objections. No reasons are assigned.  Duty is cast upon the
trial Court to consider the said objection and pass a judicial order before
proceeding further in the matter. More particularly, when the trial Court
noticed that an objection was raised, it could not have postponed the issue of
deciding the validity of a document and ought to have decided then and there the
correctness of the objections before proceeding further.
20.     For the reasons aforesaid, the order impugned herein is set aside and the
Senior Civil Judge at Nirmal is directed to consider the objections raised by
the petitioners as with reference to the marking of the agreement dated
14.01.2013 as an exhibit and take a decision thereon before proceeding further.
21.     Accordingly, the civil revision petition is allowed.  No costs.
        Miscellaneous petitions if any pending in this civil revision petition
shall stand closed.
__________________________  
JUSTICE P.NAVEEN RAO    
Date:   22-01-2014

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