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2002 DIGILAW 767 (KAR)

LAKSHAMMA v. RIYAZ KHAN

2002-12-12

body2002
( 1 ) PETITIONERS represented by their power of attorney holder who are some of defendants in Original Suit have filed this writ petition questioning the correctness of the order dated 2. 11. 2002 passed by the V Addl. City Civil Judge in OS 6674/98 produced at Annexure-E to the petition and sought for issuance of a writ of certiorari to quash the same urging various facts and legal contentions. ( 2 ) THE brief facts are stated for the purpose of considering and answering the rival legal submissions made on behalf of the parties. Respondents 1 to 4 herein have filed suit for permanent injunction on the basis of the alleged agreement of sale dated 28. 2. 1997 said to have been executed by one Mr. Khasim Khan and children. In the said original suit written statement was filed by the petitioners disputing the genuiness of the documents and further contended that they have been in possession and enjoyment of the property bearing Sy. No. 21 of Devarajeevanahalli measuring 2 acres 28 guntas as absolute owners as they have obtained registered sale deed dated 12. 3. 1999 in their favour through the Court on the strength of the Decree obtained by them in OS 21/97 suit for specific performance of contract in respect of the property in question. It is their case that earlier to the said sale deed referred to supra they were tenants of the property and they obtained agreement of sale from the erstwhile owner of the property through his power of attorney holder. ( 3 ) ON the basis of pleadings, the Trial Court framed issues. In support of the claim of respondents 1 to 4, the first respondent was examined as PW-1. During his evidence petitioners raised objection for marking of the alleged agreement of sale dated 28. 2. 1997 and the same was marked subject to objection as per Ex. P. 2. Thereafter, the Trial Court has passed an order on the question of payment of duty and penalty upon the document under the provisions of Karnataka Stamp Act of 1957 by passing the order dated 28. 3. 2000 and they were directed to pay the same, against which order, respondents 1 to 4 filed CRP No. 1828/2000 before this Court questioning the legality of the same which came to be dismissed by order dated 8. 2. 2002. Against the said order Spl. 3. 2000 and they were directed to pay the same, against which order, respondents 1 to 4 filed CRP No. 1828/2000 before this Court questioning the legality of the same which came to be dismissed by order dated 8. 2. 2002. Against the said order Spl. Leave Petition in No. 12084/2002 was filed before Honble Supreme Court wherein the Apex Court confirmed the order passed in CRP by dismissing the SLP vide its order dated 15. 7. 2002. The Review Petition was also filed by respondents and the same came to be dismissed by this Court as per its order dated 15. 6. 2002. ( 4 ) THEREAFTER, respondents 1 to 4 filed memo under Order 8 Rule 10 to reject the written statement of the petitioner on the alleged ground that the same is not filed within time. The said memo was rejected on 18. 9. 2002 by passing a considered order. Thereafter, one more application was filed by the respondents under Sec. 113 CPC which came to be dismissed as withdrawn. The respondents herein have been filing application after application with a view to protract the proceedings to gain time for payment of duty and penalty on the documents and ultimately they failed to pay duty and penalty of Rs. 21,97,900/- upon the document. Since they did not pay the said amount, document Ex. P. 2 was impounded and referred the matter to the Deputy Commissioner for collecting the duty and penalty under the provisions of Karnataka Stamp Act. Thereafter, they adduced evidence and examined one of the respondents PW2 partly. ( 5 ) DURING the course of evidence of the defendants, the counsel for the respondents/plaintiffs sought to confront with the xerox copy of Ex. P2 as respondents to identify the signatures of executant as well as witnesses in the xerox copy of the document Ex. P2. The same was seriously objected to by the petitioners counsel and thus thereafter, the petitioners were directed by the Court below to file written objections for marking the signatures of Executant and witnesses to the document Ex. P2. P2 as respondents to identify the signatures of executant as well as witnesses in the xerox copy of the document Ex. P2. The same was seriously objected to by the petitioners counsel and thus thereafter, the petitioners were directed by the Court below to file written objections for marking the signatures of Executant and witnesses to the document Ex. P2. Accordingly, the objections were filed, the learned Trial Judge has rejected the objections filed by the petitioners without considering the law on the legal question raised and assigning valid and cogent reasons which order is impugned in this petition at Annexure-E. ( 6 ) SRI M. V. Chandrashekhar Reddy, the learned counsel appearing for the petitioners has vehemently contended that the impugned order is illegal as the same is contrary to the Judgment of Rajasthan High Court reported in AIR 1997 PAGE 155 in the case of Shivkanath Pandey and another Vs. Iswari Singh in support of the proposition that once the original document is not admissible in evidence as the same is not being stamped, the secondary evidence on its contents by producing a carbon copy of the same cannot be allowed to be received as evidence and mark such document as exhibit. Also placed reliance upon the Judgment of the Apex Court reported in AIR 1971 SC 1070 in the case of JUPIDI KESAVA RAO Vs. PULLAVARTHI VENKATA SUBBARAO AND OTHERS wherein the Apex Court has interpreted the provisions of Sec. 35 and 36 of the Stamp Act of 1899 and Sec. 91 of the Evidence Act has laid down the law at paragraphs 22 to 25 of the Judgment holding that secondary evidence by way of oral evidence or copy of document insufficiently stamped is not admissible in a suit even though objection to its admissibility cannot be taken under the provisions of Evidence Act. Therefore, the learned counsel for the petitioners submit that, the impugned order passed by the Trial Court is contrary to the Judgment of Supreme Court and also the provisions of the Sec. 35 and 36 of the Stamp Act and also contrary to law laid down by this Court in CRP No. 1828/00 DD 8. 2. Therefore, the learned counsel for the petitioners submit that, the impugned order passed by the Trial Court is contrary to the Judgment of Supreme Court and also the provisions of the Sec. 35 and 36 of the Stamp Act and also contrary to law laid down by this Court in CRP No. 1828/00 DD 8. 2. 2002 after placing reliance upon the Judgment of the Apex Court reported in AIR 1961 SC 1655 , AIR 1978 SC 1393 and provisions of Sections 35 and 36 of the Stamp Act of 1899 which Judgment is affirmed by the Supreme Court in SLP 12084/02. Therefore, the learned counsel for the petitioners submit that, the impugned order is liable to be quashed. ( 7 ) THE learned counsel appearing on behalf of respondents Mr. Sundaresh sought to justify the impugned order placing reliance upon the Judgments of this Court reported in ILR 1998 KAR 3842 in the case of SAKAMMA vs. PAVADI GOWDA AND OTHERS and ILR 1999 KAR 4634 in the case of K. AMARNATH Vs. SMT. PUTTAMMA in support of the proposition that any document produced sought to be exhibited in the case the Court should decide whether the document is admissible or not. If it is admitted in evidence, it should be given Ex. Number after marking it as required under Order 13 Rule 4 of CPC and if it is rejected as inadmissible, an endorsement has to be made as prescribed under Order 13 Rule 6 of CPC, when once Court admits a document if wrongly such admission becomes final cannot be re-opened. Also placed reliance upon the Judgment of this Court reported in ILR 2002 KAR 3616 in justification of the order passed by the Trial Court. ( 8 ) WITH reference to the above said rival legal contentions urged by the parties, this Court has examined the correctness of the impugned order passed by the Trial Court which is produced at Annexure-E. It is an undisputed fact that, earlier the Trial Court has passed an order whether the document Ex. P. 2 the alleged agreement of sale tendered in evidence can be marked subject to objections for the reason that same is insufficiently stamped as required under the provisions of Karnataka Stamp Act. The said document was marked as Ex. P2, thereafter the Court took up the issue regarding its admissibility and passed an order on 28. P. 2 the alleged agreement of sale tendered in evidence can be marked subject to objections for the reason that same is insufficiently stamped as required under the provisions of Karnataka Stamp Act. The said document was marked as Ex. P2, thereafter the Court took up the issue regarding its admissibility and passed an order on 28. 3. 2000 holding that the document was not duly stamped. Therefore, respondents were directed to pay deficit Stamp duty with penalty on the document. That order was subject matter before this Court in CRP 1828/2000. This Court after referring to Secs. 34 and 35 of the Stamp Act, 1957, the Judgment of Supreme Court reported in AIR 1961 SC 1655 and also Order 13 Rules 4 (1) and 6 CPC and Rule 82 (1) of the Karnataka Civil Practice Rules, 1987 and Judgment of Supreme Court reported in AIR 1978 SC 1393 and 2001 Crl. L. J. 1254 has succinctly laid down the law after referring to the Judgment in Javeed Chands case referred to supra where the question of admissibility of document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Further it is held, as per law laid down by the Supreme Court and under the provisions of the CPC, it is the bounden duty of the Trial Court to decide the admissibility of the document which is tendered in evidence and objected to on either of the grounds referred to supra. ( 9 ) FURTHER, in the said CRP this Court has placed reliance upon the Judgment of Supreme Court in the case of Bipin Shantilal Panchal (2001 Crl. L. J. 1254) wherein it has been held that, where admissibility of document is objected then the Court should tentatively mark the document as a exhibit and can determine the objections at he last stage in the final judgment. But, while holding so, the Apex Court carved an exception regarding admissibility of a document where objection is based on deficient stamp duty, then the Court has to decide the objection before proceeding further. But, while holding so, the Apex Court carved an exception regarding admissibility of a document where objection is based on deficient stamp duty, then the Court has to decide the objection before proceeding further. In this regard, reliance is placed upon the Judgment of the Supreme Court reported in AIR 1966 SC 1631 for the proposition that no act of Court shall harm a litigant and it is the bounden duty of Court to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied. ( 10 ) THE Judgment in CRP No. 1828/2000 has been affirmed by the Supreme Court in the SLP referred to supra. Thereafter, the duty and penalty has not been paid by the respondents and therefore the document is referred to the Deputy Commissioner for impounding the same and to take necessary action in that regard under the provisions of the Karnataka Stamp Act, 1957. Again, on the application filed by respondents 1 to 4, the learned counsel for respondents requested this Court to confront the xerox copy of Ex. P2 to the defendants witness wherein it was objected to by rightly placing reliance upon the Rajasthan High Court reported in AIR 1997 Rajasthan 155 same has been rejected by the Trial Court placing reliance upon the Judgment of this Court reported in ILR 2002 KAR 3613 in the case of K. ANJANEYA SETTY vs. K. H. RANGIAH SETTY without considering the law laid down by the Rajasthan High Court in the above referred case. The correctness of the said finding is examined by this Court with reference to the law laid down by the Apex Court in Jupidi Keshava Raos case referred to supra wherein the Apex Court after interpretation of Sections 34 and 35 of the Stamp Act of 1899 and Sec. 91 of the Evidence Act has succinctly laid down the law at paragraphs 22 to 25 holding that secondary evidence by way of oral evidence or copy of document insufficiently stamped is not admissible in a suit even though objection to its admissibility cannot be taken under Evidence Act. ( 11 ) IN view of the law laid down by the Apex Court in the above said case, Ex. ( 11 ) IN view of the law laid down by the Apex Court in the above said case, Ex. p. 2 was not allowed to be taken on record and that order has been affirmed by this Court in CRP and the Apex Court. Thereafter, it is not open for the plaintiffs to produce a xerox copy of the same and confront the same to the petitioners/defendants witnesses as the same is not permissible in view of the clear exposition of law laid down in Jupidi Keshava Raos case referred to supra. ( 12 ) THE trial court without considering the provisions of Secs 35 and 36 of the Act in a perspective way and also law laid down by the Supreme Court, has passed the impugned order permitting the respondents counsel to confront the said document to the petitioners witnesses placing reliance upon Anjanaiah Settys case referred to supra, which Judgment has no application to the fact situation of this case, for the reason that marking of the document has been rejected and which order has been affirmed by this Court and the Supreme Court. Therefore, applying the ratio laid down in Anjanaiah Settys case to confront the xerox copy of the petitioners witness is not permissible in law. ( 13 ) FURTHER reliance placed upon by the respondents on the Judgments reported in ILR 1998 KAR 3842 (Sakammas case) and ILR 1999 KAR 4634 (K. AMARNATHs case) in justification of the order is wholly inapplicable to the fact situation of the case on hand for the reasons recorded in the case between the same parties in CRP 1828/2000 which order has been affirmed by the Supreme Court in SLP referred to supra for the reason that, in all those Judgments ratio laid down by the Supreme Court in Jupidi Keshava Raos case referred to supra is not considered and answered. Therefore, binding precedent is the law declared by the Supreme Court in Jupidis case on the question involved in this case. The reliance placed upon by the learned counsel for the respondent upon the Judgments of this Court referred to supra are mis placed and the same do not render any assistance to the respondents. ( 14 ) FOR the reasons stated supra, the petitioners must succeed. Accordingly, the writ petition is allowed. Impugned order dated 2. 11. 2002 in OS 6674/1998 vide Annexure-E is hereby quashed. ( 14 ) FOR the reasons stated supra, the petitioners must succeed. Accordingly, the writ petition is allowed. Impugned order dated 2. 11. 2002 in OS 6674/1998 vide Annexure-E is hereby quashed. Objections raised by the petitioners in the original suit to confront the xerox copy is upheld. --- *** --- .