HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
C.R.P.No.4794 OF 2015
05-02-2016
Syed Yousuf Ali ...Petitioner
1.Mohd. Yousuf 2.Smt Waheedunnisa Begum 3.Mohd. Abdul Nayeem 4.Smt Yasam
Begum...Respondents/Plf./D1 to 3
Counsel for Petitioner: Sri V.Ravi Kiran Rao
Counsel for Respondents: Sri K.Venumadhav
<GIST:
>HEAD NOTE:
? Cases referred
2004(2)ALD) 329
2 2010(1) ALT 448
3 2010(6)ALD 307
4 (2014) 1 SCC 618
5 2012 (6) ALT 271
6 2004(3) ALD 187
7 2010 Law Suit (AP) 445
8 2006(3) ALD 838
9 1996 Law Suit (AP) 447
10 2002 Law Suit 832
11AIR 2003 SC 4548
12AIR 1978 SC 1393
132012(6) ALT 271
14AIR 1961 SC 1655
15 AIR 2010 SC 1654
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
C.R.P.No.4794 OF 2015
ORDER:
The 4th defendant in O.S.No.56 of 2013 on the file of
the Motor Accidents Claims Tribunal-cum-VIII Additional
District and Sessions Judge, Nizamabad preferred this
revision under Article 227 of the Constitution of India
challenging the docket order dated 11.09.2015 over-rulling
the objection raised by the learned counsel for the 4th
defendant about admissibility of possessory agreement or
sale, dated 26.06.2012 marked as Ex.A.1.
2. The revision petitioner is the 4th defendant, respondent
No.1 is the plaintiff and respondents 2 to 4 are defendants 1
to 3 before the trial Court.
3. The case of the petitioner is that at the time of marking
possessory agreement of sale as Ex.A.1 objection could not be
raised as it was marked in the affidavit filed under Order
XVIII Rule 4 CPC in lieu of examination in chief and learned
counsel was sick on that day and therefore, questioning the
admissibility of the possessory agreement of sale, learned
counsel for the revision petitioner, filed memo bringing to the
notice of the Court that the document is inadmissible, in view
of Explanation to S.No. 47A of Schedule 1-A of the Indian
Stamp Act and 17(1) of the Registration Act. The trial Court,
considering the objection based on memo, passed an order
holding that when the document is received in evidence,
marked as exhibit without any objection, the same cannot be
agitated at the subsequent stage, placing reliance on
judgments of this Court in Shaik Qutubuddin S/o Shaik
Ahmed and another v. Goli Vishwanatham S/o Mallesham
and others , Cheryala Srinivas v. Moola Sujatha and
others AND B.Bhaskar Reddy v. Bommireddy Pattabhi
Rami Reddy (died) per LRs and others .
4. Questioning the propriety of the docket order referred
supra, the present revision petition is filed.
5. Raising several contentions and one among the other is
that mere marking of document as exhibit without applying
mind, does not amount to admission of document in evidence
and the revision petitioner is entitled to challenge the
admissibility of the document at any time and Section 36 of
Indian Stamp Act, 1899 is not applicable to the present facts
of the case. But the trial Court committed a grave error in
exercising the jurisdiction conferred on it. Therefore, it
warrants interference of this Court and prayed to set aside
the order placing reliance on Omprakash v. Laxminarayan
and others .
6. The respondents did not file any counter in view of the
undisputed facts except disputing as to law.
7. The main endeavour of the learned counsel for the
revision petitioner is that the Court did not apply its mind
while marking the document as exhibit, it does not amount to
actually admitting the document in evidence and such an
objection about the admissibility of document in evidence can
be raised at any stage, placed reliance on judgment reported
in Athapuram Raghuramaiah and another v. Dyava
Ramaiah , Vemireddy Kota Reddy v. Vemi Reddy
Prabhakar Reddy , and B.Bhaskar Reddy v. Bommireddy
Pattabhi Rami Reddy (died) per LRs and others . On the
strength of the above judgments, Sri V.Ravi Kiran Rao,
learned counsel for the petitioner contended that the order
under challenge is erroneous and it is nothing but erroneous
exercise of jurisdiction which conferred on the trial Court.
8. Per contra, Sri K.Venu Madhav, learned counsel for the
respondent No.1 would contend that when the document is
admitted in evidence, the same cannot be questioned at any
subsequent stage except under Section 61 of the Indian
Stamp Act and apart from that the document marked as
Ex.A.1 though it styled as possessory contract of sale, the
defendant denied delivery of possession. In such a case,
admission of the contract of sale in evidence, marking the
same as Ex.A.1 is not an error to set aside the same
exercising power under Article 227 of the Constitution of
India. He also placed reliance on T.Basavaraju (died) per
LRs and others v. T.Nagaratnam and others , M.
Narasimhulu v. M.Laxmamma and Isra Fatima v.
Bismillah Begum contending that once the document is
marked admissibility cannot be questioned at subsequent
stage.
9. In view of the rival contentions, the core issues before
this Court are:
(1) Whether judicial order can be passed on memo
filed by the petitioner raising objection about
the admissibility of possessory agreement of
sale?
2) Whether the petitioner/defendant No.4 is entitled
to question the admissibility of the document
when it was marked as Ex.A.1 by the trial
Court, if so, the docket order dated 11.09.2015
under challenge in the revision be set aside
while exercising power under Article 227 of the
Constitution of India by this Court.
Inre-POINT NO.1:
10. As seen from the material on record, the suit was filed
for grant of decree for specific performance of contract of sale
based on possessory contract of sale Ex.A.1 dated
26.06.2015 which is the basis for the claim or document sued
upon. It was marked as Ex.A.1 by the trial Court. The trial
Court also while passing order under challenge in Para 2 of
page 2 of the order observed that the affidavit in lieu of
examination in chief under Order XVIII Rule 4 CPC was filed
and the document was marked on later date, but learned
counsel for the 4th defendant did not raise any objection
about the admissibility of the possessory contract of sale as
Ex.A.1. Though a specific reason was assigned for failure to
raise objection about admissibility at the time of marking, is
not supported by any material. However, he filed memo dated
01.09.2015 raising an objection that the agreement of sale
dated 26.06.2012 marked as Ex.A.1 is inadmissible in
evidence and requested to delete the same from the record
after hearing both counsel as to the admissibility of contract
of sale in evidence.
11. On the strength of the memo, the trial Court heard both
counsel and passed docket order dated 11.09.2015, which is
under challenge in the present revision.
12. The first and foremost contention of the learned counsel
for the respondents is that no judicial order be passed based
on memo. Filing of memo is not contemplated either under
Code of Civil Procedure or under Civil Rules of Practice. The
purpose of receiving memos by the Courts is only to receive
certain intimation pertaining to the lis pending before it.
Since filing of memo is not contemplated under Code of Civil
Procedure or Civil Rules of Practice, no judicial order can be
passed on memo. But the trial Court passed a judicial order
based on memo which is contrary to the established practice.
Therefore, the order passed by the trail Court basing on
memo dated 11.09.2015 filed before the trial Court is
erroneous and it is an illegal exercise of jurisdiction which is
conferred on it.
13. In view of my discussion in the earlier para, I am of the
clear view that no judicial order can be passed on memo.
Accordingly, Point No.1 is decided in favour of the
respondents and against the petitioner.
Inre-POINT No.2:
14. The real controversy between the parties to the revision
is as to the admissibility of possessory contract of sale as it
was insufficiently stamped and in view of explanation to
S.No.47A of Schedule I-A of Indian Stamp Act and in view of
Section 17 of the Registration Act and that the trail Court
without applying its mind marked the document as Ex.A.1 in
evidence. In such a case, admissibility of the document can
be questioned in view of specific contention of the petitioner.
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.
19. In B.Bhaskar Reddys case (7th supra), this Court is of
a view that with the aid of purposive interpretation, the Court
shall insist upon payment of proper stamp duty to avoid loss
of revenue to the State. This legal principle is not in dispute.
20. Learned counsel for the petitioner further drawn the
attention of this Court to Athapuram Raghuramaiah and
another v. Dyava Ramaiah , wherein this Court considered
the scope of Section 36 of the Indian Stamp Act and Order
XIII Rule 4 CPC for impounding documents and held that
mere marking of a document or showing it to the witness
would not amount to admissibility of document in evidence,
after judicial consideration as to its admissibility, unless the
endorsement made on the document at the time of marking
contains a specific statement as to its admission in evidence
and signed or initialled by the Judge as prescribed under
Order 13 Rule 4 CPC, it cannot be said to be admitted. This
Court further held that the words admitted in evidence as
appearing in Section 36 of the Indian Stamp Act mean
admitted after judicial consideration of objections relating to
its admissibility. Thus, there shall be a judicial
determination of the question whether it can be admitted in
evidence or not for want of stamp, on the day when the
document was shown to the witnesses and marked. Merely
because a document was marked or shown to the witness
would not mean that the objection raised by the opposite
party was rejected by judicial determination.
21. In Vemireddy Kota Reddys case (6th supra), this Court
held that the objection as to admissibility of the document
has to be decided before assigning exhibit number. When the
documents were marked as exhibits in the absence of
defendant or his counsel and without considering the nature
of the document by the Court, assigning exhibit number
cannot be said to be admitted in evidence and interdict
contained in Section 36 would not come to the aid of the
party in whose evidence the document was marked as exhibit
without any judicial determination, totally debarring the
adversary to challenge the admissibility of document in
evidence. In the said judgment, single Judge of this Court
relied on Javer Chand and others v. Pukhraj Surana to
conclude that marking of a document is assigning exhibit
number without judicial determination would not amount to
admitting document in evidence and such objection can be
raised at later point of time.
22. Whereas, learned counsel for the respondents placed
reliance in T.Nagaratnams case (8th supra), so also
M.Narasimhulus case (9th supra) and Isra Fatimas case
(10th supra). In all the three judgments, the single Judges of
this Court decided the bar contained under Section 36 of
Indian Stamp Act holding that until and unless there is a
judicial determination it cannot be said that it has been
admitted in evidence though it is marked. Mere marking of
document itself is not sufficient and there should be judicial
determination as to the nature of document and its
admissibility. Further the words admitted in evidence
appearing under Section 36 of the Act means admitted after
judicial consideration of objections relating to admissibility.
In the absence of judicial determination marking of document
mechanically is an illegality. Even otherwise at any stage of
the suit, the Court may reject any document which it
considers irrelevant or otherwise in admissible in view of
Order 13 Rule 3 CPC.
23. In M.Narasimhulus case (9th supra) single Judge of this
Court held that in view of bar under Section 36 once the
document was admitted in evidence, the same cannot be
questioned, at subsequent stages, but in view of law declared
by Apex Court, the objection can be entertained to determine
judicially at any subsequent stage.
24. According to Order 13 Rule 3 CPC the Court may at any
stage of the suit, reject any document which it considers
irrelevant or otherwise inadmissible, recording the grounds
for such rejection. Order 13 Rule 4 CPC prescribes the
endorsement to be made on the document when a document
is admitted in evidence. According to it, there shall be an
endorsement on every document which has been admitted in
evidence containing number and title of the suit, the name of
the person producing the document, the date on which it was
produced and a statement of its having been so admitted and
the endorsement shall be signed or initialled by the Judge.
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.
27. The objections raised by the petitioner are twofold. The
first objection as to the admissibility of the document due to
insufficiency of stamp on the contract of sale or sale deed,
according to explanation to S.No.47A of Schedule 1-A the
stamp duty payable on the possessory contract of sale is as
follows:
(Explanation-I):- An agreement to sell followed by or evidencing
delivery of possession of the property agreed to be sold shall be
chargeable as a sale under this Article:
Provided that, where subsequently a sale deed is executed in
pursuance of an agreement of sale as aforesaid or in pursuance of
an agreement referred to in Clause (b) of Article 6, the stamp duty, if
any, already paid or recovered on the agreement of sale the
adjusted towards the total duty leviable on the sale deed.
28. The present facts of the case are that the document
already marked as Ex.A.1 was not properly marked in view of
the above principles. In such a case, the document cannot be
admitted in evidence except after collecting stamp duty and
penalty or impounding the document under Order 13 Rule 1
CPC, but the trial Court without following due procedure just
marked a fixing stamp, without judicial determination as to
the admissibility of the said document. In such a case, the
Court can reject the document as it is inadmissible by
exercising power under Order 13 Rule 3 CPC.
29. The other contention of the learned counsel for the
petitioner is that, since, the document is styled as sale deed
which is required to be registered under Section 17 of the
Registration Act, when it is not registered, the same cannot be
admitted in evidence. This contention cannot be sustained
for the reasons that an unregistered sale deed or an
agreement of sale required to be registered under Section 17
of the Registration Act can be admitted in evidence in a suit
for specific performance of contract of sale in view of Section
49(C) of the Registration Act. In S.Kaladevi v.
V.R.Somasundaram the Apex Court held that an
unregistered agreement of sale is admissible in evidence
under Section 49(C) of the Registration Act, in a suit for
specific performance of contract of sale and unregistered sale
deed is also admissible in evidence. Thus, in view of the law
declared by the Apex Court in the above judgment, the
contention of the learned counsel for petitioner is not
sustainable and on the ground of non-registration of
document as per Section 17 of Indian Registration Act, the
document cannot be rejected.
30. The objection as to admissibility may be raised by filing
a petition to reject the document on the ground that it is
inadmissible or by oral objection during pendency of the suit.
Here, though no judicial order can be passed on the memo
still the oral objection raised by the learned counsel as to the
admissibility of the document is required to be considered
and if the Court finds that the objection raised by the learned
counsel as to the admissibility is sustainable, the course open
to the Court is to reject the document exercising power under
Order 13 Rue 3 CPC, merely because no application is filed
under Order 13 Rule 3 CPC, the Court is not preclude from
passing such order.
31. In any view of the matter, the petitioner herein raised an
objection orally or bringing the same to the notice of the
Court by filing a memo as to his objection, the Court has to
pass appropriate orders, but passed an order which is
contrary to law without distinguishing marking and admitting
the document in evidence. Therefore, the docket order of the
trial Court dated.11.09.2015 is erroneous, since, the trial
Court did not exercise jurisdiction that conferred on it.
32. A co-joint reading of Section 36 of Indian Stamp Act and
order XII Rule 3 of CPC, there is little conflict as to rejection
of any document which is already marked on the ground that
the document is irrelevant or inadmissible in evidence after
recording reasons. If really the bar contained in Section 36 is
absolute which preclude the Court to entertain any objection
as to admissibility at any subsequent stage, after the
document is marked in evidence, Order XIII Rule 3 become
redundant. When Court did not determine judicially as to
admissibility of possessory contract of sale and marked the
same as Exhibit, without applying its mind, the admissibility
of document can be decided judicially and reject if the Court
find that the document is inadmissible in evidence or reject
the document at any stage of the proceedings. Hence, the
trial Court did not exercise its jurisdiction under Order XIII
Rule 3 of CPC, consequently liable to be set aside.
33. By exercising power under Order XIII Rule 3 of CPC,
possessory contract of sale dated 11.09.2015 which is
marked as Ex.A1 is rejected as it is hit by explanation to
S.No.47-A of schedule 1-A of Indian Stamp Act and
inadmissible in evidence, since the document is not
impounded or stamp duty and penalty is not paid.
34. No doubt, the powers of the Court under Article 227 of
the Constitution are supervisory in nature and when the trial
Court did not exercise the jurisdiction which is conferred on it
or where the trial Court exercised its jurisdiction excessively
or admitted inadmissible evidence or when the Court
exercised its jurisdiction illegally or with material irregularity
this Court can interfere with the order under challenge. In
the present facts of the case, the Court failed to exercise its
jurisdiction so vested on it to decide the admissibility of the
document and thereby the order of the trial Court warrants
interference of this Court since it is against the settled law.
35. In view of my foregoing discussion, I find no merits in
the contentions of the learned counsel for the respondents
and the trial Court committed grave error in rejecting the
contention of the revision petitioner/4th defendant as to
admissibility of the possessory contract of sale dated
26.06.2012. Therefore, the finding of the trial Court is hereby
set aside, holding the point against the respondent and in
favour of the revision petitioner.
36. In the result, the civil revision petition is allowed setting
aside the order dated 11.09.2015 passed in O.S.No.56 of
2013 by Motor Accidents Claims Tribunal-cum-VIII Additional
District and Sessions Judge, Nizamabad, rejecting the
possessory contract of sale dated 11.09.2015, as it is
inadmissible in evidence. It is made clear that the respondent
No.1/plaintiff is entitled to get the document impounded or
pay stamp duty and penalty as per rules and make a request
to admit the same in evidence and on such request the Court
may admit the document and mark the same. There shall be
no order as to costs.
Miscellaneous petitions if any, pending in this revision
shall stand closed.
_________________________________
M.SATYANARAYANA MURTHY,J
05.02.2016
C.R.P.No.4794 OF 2015
05-02-2016
Syed Yousuf Ali ...Petitioner
1.Mohd. Yousuf 2.Smt Waheedunnisa Begum 3.Mohd. Abdul Nayeem 4.Smt Yasam
Begum...Respondents/Plf./D1 to 3
Counsel for Petitioner: Sri V.Ravi Kiran Rao
Counsel for Respondents: Sri K.Venumadhav
<GIST:
>HEAD NOTE:
? Cases referred
2004(2)ALD) 329
2 2010(1) ALT 448
3 2010(6)ALD 307
4 (2014) 1 SCC 618
5 2012 (6) ALT 271
6 2004(3) ALD 187
7 2010 Law Suit (AP) 445
8 2006(3) ALD 838
9 1996 Law Suit (AP) 447
10 2002 Law Suit 832
11AIR 2003 SC 4548
12AIR 1978 SC 1393
132012(6) ALT 271
14AIR 1961 SC 1655
15 AIR 2010 SC 1654
THE HONBLE SRI JUSTICE M.SATYANARAYANA MURTHY
C.R.P.No.4794 OF 2015
ORDER:
The 4th defendant in O.S.No.56 of 2013 on the file of
the Motor Accidents Claims Tribunal-cum-VIII Additional
District and Sessions Judge, Nizamabad preferred this
revision under Article 227 of the Constitution of India
challenging the docket order dated 11.09.2015 over-rulling
the objection raised by the learned counsel for the 4th
defendant about admissibility of possessory agreement or
sale, dated 26.06.2012 marked as Ex.A.1.
2. The revision petitioner is the 4th defendant, respondent
No.1 is the plaintiff and respondents 2 to 4 are defendants 1
to 3 before the trial Court.
3. The case of the petitioner is that at the time of marking
possessory agreement of sale as Ex.A.1 objection could not be
raised as it was marked in the affidavit filed under Order
XVIII Rule 4 CPC in lieu of examination in chief and learned
counsel was sick on that day and therefore, questioning the
admissibility of the possessory agreement of sale, learned
counsel for the revision petitioner, filed memo bringing to the
notice of the Court that the document is inadmissible, in view
of Explanation to S.No. 47A of Schedule 1-A of the Indian
Stamp Act and 17(1) of the Registration Act. The trial Court,
considering the objection based on memo, passed an order
holding that when the document is received in evidence,
marked as exhibit without any objection, the same cannot be
agitated at the subsequent stage, placing reliance on
judgments of this Court in Shaik Qutubuddin S/o Shaik
Ahmed and another v. Goli Vishwanatham S/o Mallesham
and others , Cheryala Srinivas v. Moola Sujatha and
others AND B.Bhaskar Reddy v. Bommireddy Pattabhi
Rami Reddy (died) per LRs and others .
4. Questioning the propriety of the docket order referred
supra, the present revision petition is filed.
5. Raising several contentions and one among the other is
that mere marking of document as exhibit without applying
mind, does not amount to admission of document in evidence
and the revision petitioner is entitled to challenge the
admissibility of the document at any time and Section 36 of
Indian Stamp Act, 1899 is not applicable to the present facts
of the case. But the trial Court committed a grave error in
exercising the jurisdiction conferred on it. Therefore, it
warrants interference of this Court and prayed to set aside
the order placing reliance on Omprakash v. Laxminarayan
and others .
6. The respondents did not file any counter in view of the
undisputed facts except disputing as to law.
7. The main endeavour of the learned counsel for the
revision petitioner is that the Court did not apply its mind
while marking the document as exhibit, it does not amount to
actually admitting the document in evidence and such an
objection about the admissibility of document in evidence can
be raised at any stage, placed reliance on judgment reported
in Athapuram Raghuramaiah and another v. Dyava
Ramaiah , Vemireddy Kota Reddy v. Vemi Reddy
Prabhakar Reddy , and B.Bhaskar Reddy v. Bommireddy
Pattabhi Rami Reddy (died) per LRs and others . On the
strength of the above judgments, Sri V.Ravi Kiran Rao,
learned counsel for the petitioner contended that the order
under challenge is erroneous and it is nothing but erroneous
exercise of jurisdiction which conferred on the trial Court.
8. Per contra, Sri K.Venu Madhav, learned counsel for the
respondent No.1 would contend that when the document is
admitted in evidence, the same cannot be questioned at any
subsequent stage except under Section 61 of the Indian
Stamp Act and apart from that the document marked as
Ex.A.1 though it styled as possessory contract of sale, the
defendant denied delivery of possession. In such a case,
admission of the contract of sale in evidence, marking the
same as Ex.A.1 is not an error to set aside the same
exercising power under Article 227 of the Constitution of
India. He also placed reliance on T.Basavaraju (died) per
LRs and others v. T.Nagaratnam and others , M.
Narasimhulu v. M.Laxmamma and Isra Fatima v.
Bismillah Begum contending that once the document is
marked admissibility cannot be questioned at subsequent
stage.
9. In view of the rival contentions, the core issues before
this Court are:
(1) Whether judicial order can be passed on memo
filed by the petitioner raising objection about
the admissibility of possessory agreement of
sale?
2) Whether the petitioner/defendant No.4 is entitled
to question the admissibility of the document
when it was marked as Ex.A.1 by the trial
Court, if so, the docket order dated 11.09.2015
under challenge in the revision be set aside
while exercising power under Article 227 of the
Constitution of India by this Court.
Inre-POINT NO.1:
10. As seen from the material on record, the suit was filed
for grant of decree for specific performance of contract of sale
based on possessory contract of sale Ex.A.1 dated
26.06.2015 which is the basis for the claim or document sued
upon. It was marked as Ex.A.1 by the trial Court. The trial
Court also while passing order under challenge in Para 2 of
page 2 of the order observed that the affidavit in lieu of
examination in chief under Order XVIII Rule 4 CPC was filed
and the document was marked on later date, but learned
counsel for the 4th defendant did not raise any objection
about the admissibility of the possessory contract of sale as
Ex.A.1. Though a specific reason was assigned for failure to
raise objection about admissibility at the time of marking, is
not supported by any material. However, he filed memo dated
01.09.2015 raising an objection that the agreement of sale
dated 26.06.2012 marked as Ex.A.1 is inadmissible in
evidence and requested to delete the same from the record
after hearing both counsel as to the admissibility of contract
of sale in evidence.
11. On the strength of the memo, the trial Court heard both
counsel and passed docket order dated 11.09.2015, which is
under challenge in the present revision.
12. The first and foremost contention of the learned counsel
for the respondents is that no judicial order be passed based
on memo. Filing of memo is not contemplated either under
Code of Civil Procedure or under Civil Rules of Practice. The
purpose of receiving memos by the Courts is only to receive
certain intimation pertaining to the lis pending before it.
Since filing of memo is not contemplated under Code of Civil
Procedure or Civil Rules of Practice, no judicial order can be
passed on memo. But the trial Court passed a judicial order
based on memo which is contrary to the established practice.
Therefore, the order passed by the trail Court basing on
memo dated 11.09.2015 filed before the trial Court is
erroneous and it is an illegal exercise of jurisdiction which is
conferred on it.
13. In view of my discussion in the earlier para, I am of the
clear view that no judicial order can be passed on memo.
Accordingly, Point No.1 is decided in favour of the
respondents and against the petitioner.
Inre-POINT No.2:
14. The real controversy between the parties to the revision
is as to the admissibility of possessory contract of sale as it
was insufficiently stamped and in view of explanation to
S.No.47A of Schedule I-A of Indian Stamp Act and in view of
Section 17 of the Registration Act and that the trail Court
without applying its mind marked the document as Ex.A.1 in
evidence. In such a case, admissibility of the document can
be questioned in view of specific contention of the petitioner.
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.
19. In B.Bhaskar Reddys case (7th supra), this Court is of
a view that with the aid of purposive interpretation, the Court
shall insist upon payment of proper stamp duty to avoid loss
of revenue to the State. This legal principle is not in dispute.
20. Learned counsel for the petitioner further drawn the
attention of this Court to Athapuram Raghuramaiah and
another v. Dyava Ramaiah , wherein this Court considered
the scope of Section 36 of the Indian Stamp Act and Order
XIII Rule 4 CPC for impounding documents and held that
mere marking of a document or showing it to the witness
would not amount to admissibility of document in evidence,
after judicial consideration as to its admissibility, unless the
endorsement made on the document at the time of marking
contains a specific statement as to its admission in evidence
and signed or initialled by the Judge as prescribed under
Order 13 Rule 4 CPC, it cannot be said to be admitted. This
Court further held that the words admitted in evidence as
appearing in Section 36 of the Indian Stamp Act mean
admitted after judicial consideration of objections relating to
its admissibility. Thus, there shall be a judicial
determination of the question whether it can be admitted in
evidence or not for want of stamp, on the day when the
document was shown to the witnesses and marked. Merely
because a document was marked or shown to the witness
would not mean that the objection raised by the opposite
party was rejected by judicial determination.
21. In Vemireddy Kota Reddys case (6th supra), this Court
held that the objection as to admissibility of the document
has to be decided before assigning exhibit number. When the
documents were marked as exhibits in the absence of
defendant or his counsel and without considering the nature
of the document by the Court, assigning exhibit number
cannot be said to be admitted in evidence and interdict
contained in Section 36 would not come to the aid of the
party in whose evidence the document was marked as exhibit
without any judicial determination, totally debarring the
adversary to challenge the admissibility of document in
evidence. In the said judgment, single Judge of this Court
relied on Javer Chand and others v. Pukhraj Surana to
conclude that marking of a document is assigning exhibit
number without judicial determination would not amount to
admitting document in evidence and such objection can be
raised at later point of time.
22. Whereas, learned counsel for the respondents placed
reliance in T.Nagaratnams case (8th supra), so also
M.Narasimhulus case (9th supra) and Isra Fatimas case
(10th supra). In all the three judgments, the single Judges of
this Court decided the bar contained under Section 36 of
Indian Stamp Act holding that until and unless there is a
judicial determination it cannot be said that it has been
admitted in evidence though it is marked. Mere marking of
document itself is not sufficient and there should be judicial
determination as to the nature of document and its
admissibility. Further the words admitted in evidence
appearing under Section 36 of the Act means admitted after
judicial consideration of objections relating to admissibility.
In the absence of judicial determination marking of document
mechanically is an illegality. Even otherwise at any stage of
the suit, the Court may reject any document which it
considers irrelevant or otherwise in admissible in view of
Order 13 Rule 3 CPC.
23. In M.Narasimhulus case (9th supra) single Judge of this
Court held that in view of bar under Section 36 once the
document was admitted in evidence, the same cannot be
questioned, at subsequent stages, but in view of law declared
by Apex Court, the objection can be entertained to determine
judicially at any subsequent stage.
24. According to Order 13 Rule 3 CPC the Court may at any
stage of the suit, reject any document which it considers
irrelevant or otherwise inadmissible, recording the grounds
for such rejection. Order 13 Rule 4 CPC prescribes the
endorsement to be made on the document when a document
is admitted in evidence. According to it, there shall be an
endorsement on every document which has been admitted in
evidence containing number and title of the suit, the name of
the person producing the document, the date on which it was
produced and a statement of its having been so admitted and
the endorsement shall be signed or initialled by the Judge.
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.
27. The objections raised by the petitioner are twofold. The
first objection as to the admissibility of the document due to
insufficiency of stamp on the contract of sale or sale deed,
according to explanation to S.No.47A of Schedule 1-A the
stamp duty payable on the possessory contract of sale is as
follows:
(Explanation-I):- An agreement to sell followed by or evidencing
delivery of possession of the property agreed to be sold shall be
chargeable as a sale under this Article:
Provided that, where subsequently a sale deed is executed in
pursuance of an agreement of sale as aforesaid or in pursuance of
an agreement referred to in Clause (b) of Article 6, the stamp duty, if
any, already paid or recovered on the agreement of sale the
adjusted towards the total duty leviable on the sale deed.
28. The present facts of the case are that the document
already marked as Ex.A.1 was not properly marked in view of
the above principles. In such a case, the document cannot be
admitted in evidence except after collecting stamp duty and
penalty or impounding the document under Order 13 Rule 1
CPC, but the trial Court without following due procedure just
marked a fixing stamp, without judicial determination as to
the admissibility of the said document. In such a case, the
Court can reject the document as it is inadmissible by
exercising power under Order 13 Rule 3 CPC.
29. The other contention of the learned counsel for the
petitioner is that, since, the document is styled as sale deed
which is required to be registered under Section 17 of the
Registration Act, when it is not registered, the same cannot be
admitted in evidence. This contention cannot be sustained
for the reasons that an unregistered sale deed or an
agreement of sale required to be registered under Section 17
of the Registration Act can be admitted in evidence in a suit
for specific performance of contract of sale in view of Section
49(C) of the Registration Act. In S.Kaladevi v.
V.R.Somasundaram the Apex Court held that an
unregistered agreement of sale is admissible in evidence
under Section 49(C) of the Registration Act, in a suit for
specific performance of contract of sale and unregistered sale
deed is also admissible in evidence. Thus, in view of the law
declared by the Apex Court in the above judgment, the
contention of the learned counsel for petitioner is not
sustainable and on the ground of non-registration of
document as per Section 17 of Indian Registration Act, the
document cannot be rejected.
30. The objection as to admissibility may be raised by filing
a petition to reject the document on the ground that it is
inadmissible or by oral objection during pendency of the suit.
Here, though no judicial order can be passed on the memo
still the oral objection raised by the learned counsel as to the
admissibility of the document is required to be considered
and if the Court finds that the objection raised by the learned
counsel as to the admissibility is sustainable, the course open
to the Court is to reject the document exercising power under
Order 13 Rue 3 CPC, merely because no application is filed
under Order 13 Rule 3 CPC, the Court is not preclude from
passing such order.
31. In any view of the matter, the petitioner herein raised an
objection orally or bringing the same to the notice of the
Court by filing a memo as to his objection, the Court has to
pass appropriate orders, but passed an order which is
contrary to law without distinguishing marking and admitting
the document in evidence. Therefore, the docket order of the
trial Court dated.11.09.2015 is erroneous, since, the trial
Court did not exercise jurisdiction that conferred on it.
32. A co-joint reading of Section 36 of Indian Stamp Act and
order XII Rule 3 of CPC, there is little conflict as to rejection
of any document which is already marked on the ground that
the document is irrelevant or inadmissible in evidence after
recording reasons. If really the bar contained in Section 36 is
absolute which preclude the Court to entertain any objection
as to admissibility at any subsequent stage, after the
document is marked in evidence, Order XIII Rule 3 become
redundant. When Court did not determine judicially as to
admissibility of possessory contract of sale and marked the
same as Exhibit, without applying its mind, the admissibility
of document can be decided judicially and reject if the Court
find that the document is inadmissible in evidence or reject
the document at any stage of the proceedings. Hence, the
trial Court did not exercise its jurisdiction under Order XIII
Rule 3 of CPC, consequently liable to be set aside.
33. By exercising power under Order XIII Rule 3 of CPC,
possessory contract of sale dated 11.09.2015 which is
marked as Ex.A1 is rejected as it is hit by explanation to
S.No.47-A of schedule 1-A of Indian Stamp Act and
inadmissible in evidence, since the document is not
impounded or stamp duty and penalty is not paid.
34. No doubt, the powers of the Court under Article 227 of
the Constitution are supervisory in nature and when the trial
Court did not exercise the jurisdiction which is conferred on it
or where the trial Court exercised its jurisdiction excessively
or admitted inadmissible evidence or when the Court
exercised its jurisdiction illegally or with material irregularity
this Court can interfere with the order under challenge. In
the present facts of the case, the Court failed to exercise its
jurisdiction so vested on it to decide the admissibility of the
document and thereby the order of the trial Court warrants
interference of this Court since it is against the settled law.
35. In view of my foregoing discussion, I find no merits in
the contentions of the learned counsel for the respondents
and the trial Court committed grave error in rejecting the
contention of the revision petitioner/4th defendant as to
admissibility of the possessory contract of sale dated
26.06.2012. Therefore, the finding of the trial Court is hereby
set aside, holding the point against the respondent and in
favour of the revision petitioner.
36. In the result, the civil revision petition is allowed setting
aside the order dated 11.09.2015 passed in O.S.No.56 of
2013 by Motor Accidents Claims Tribunal-cum-VIII Additional
District and Sessions Judge, Nizamabad, rejecting the
possessory contract of sale dated 11.09.2015, as it is
inadmissible in evidence. It is made clear that the respondent
No.1/plaintiff is entitled to get the document impounded or
pay stamp duty and penalty as per rules and make a request
to admit the same in evidence and on such request the Court
may admit the document and mark the same. There shall be
no order as to costs.
Miscellaneous petitions if any, pending in this revision
shall stand closed.
_________________________________
M.SATYANARAYANA MURTHY,J
05.02.2016
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