ORDER: This revision is preferred against the Order dated 9.6.1999 made in O.S.No.218 of 1996 on the file of the Subordinate Judge, Uthagamandalam declining to admit the document. Plaintiff is the revision petitioner. 2.O.S.No.218 of 1996: Plaintiff has filed this suit for specific performance to direct the defendants to execute the sale deed in respect of the suit schedule property. Case of the plaintiff is that by an agreement dated 26.9.1988 styled as “Agreement of Conditional Sale” executed by the defendants, the defendants have borrowed a sum of Rs.1,30,000. As per the terms, the defendants have to pay the amount of Rs.1,30,000 by 30.5.1989. As per the agreement, the plaintiff was put in possession of the properties-items 1 and 2 of the schedule of the agreement. On re-payment of the amount of Rs.1,30,000, the plaintiff is to re-deliver the items 1 and 2 to the defendants. The agreement recites that in the event, the defendants failed to repay the amount on or before 30.5.1989, the defendants would sell items 1 and 2 along with item No.3 to the plaintiff for a consideration of Rs.1,60,000. Value of items 1 and 2 is Rs.1,30,000 and the value of item No.3 is Rs.30,000. The agreement of sale to be completed by 5.6.1989 i.e., between 30.5.1989and 5.6.1989. The plaintiff has requested the defendants to execute the sale deed but the defendants were postponing the same under flimsy pretext thereupon the plaintiff had issued a notice to the defendants on 15.7.1989 calling upon the defendants to execute the sale deed. The first defendant received the notice but has not cared to reply. The second defendant refused to receive the notice. The defendants are bent upon defrauding theplaintiff. In law, the plaintiff is entitled to enforce the agreement by completing the defendants to execute the sale deed in favour of the plaintiff. Hence, the plaintiff has filed the suit for specific performance of the suit agreement dated 26.9.1989 and for directing the defendants to deliver vacant possession of the suit property. Alternatively, the plaintiff has prayed for a decree of Rs.1,49,735 with interest at the rate of 9% p.a. 3. Denying the plaint allegations, the defendants have filed written statement contending that the suit deocument is the outcome of fraud, misrepresentation and undue influence. Alternatively, the plaintiff has prayed for a decree of Rs.1,49,735 with interest at the rate of 9% p.a. 3. Denying the plaint allegations, the defendants have filed written statement contending that the suit deocument is the outcome of fraud, misrepresentation and undue influence. The plaintiff was working as a village administrative officer and has stealthily obtained signatures of the defendants on stamped as well as plain papers. In or about the month of June, 1988, when the defendants have approached the plaintiff to obtain patta for their lands, the plaintiff has surreptitiously used the said signed papers in collusion with the scribe and attesting witnesses and brought about the fradulent document. The document purported to be a deed of document and cannot be an agreement of sale by any stretch of imagination,. The said document is unenforceable in law. The defendant had at no time borrowed any amount that too a huge amount of Rs.1,30,000. the plaintiff is not entitled to the equitable relief of specific performance. 4. During the course of trial, when P.W.1 was in the box, the suit document dated 26.9.198 was sought to be marked, objectiion was raised regarding the marking of the document on the ground that the document is insufficiently stamped and not admissible for want of proper stamp duty and registration. 5. Upon consideration of the contention of both parties, the learned Subordinate Judge has found that the document is in the nature of mortgage which is to be registered and not sufficiently stamped. Finding that the document is a mortgage deed, the learned District Munsif held, Declining to admit the document in question, the trial Court adjourned the case for continuation of examination of P.W.1. 6. Aggrieved over the order passed declining to admit the document, the palintiff has preferred this revision. 7. Drawing the attention of the Court to the recitals in the document in question, the learned counsel for the revision petitioner has submitted that the document is in substance only an agreement of sale. It is further submitted that if the amount borrowed is not paid, the document becomes a regular agreement of sale and the amount of Rs.1,30,000 paid becomes the sale consideration. It is further submitted that if the amount borrowed is not paid, the document becomes a regular agreement of sale and the amount of Rs.1,30,000 paid becomes the sale consideration. Pointing out the averments in the writen statement, the learned counsel for the revision petitioner/plaintiff has submitted that no where the defendants have raised the plea that the document is a mortgage deed but have only denied the genuineness of the document by putting forth the plea of fraud and misrepresentation. Placing reliance upon the decision of the Supreme Court reported in Bipin Shantilal Panchal v. State of Gujarat and another, (2001)3 S.C.C. 1 , the learned counsel has submited that the trial Court was not right in passing an elaborate order regarding the admissibility of the document and the trial Court ought to have relegated the question at the last stage of the judgment. 8. Countering the argument, the learned counsel for the respondents/defendants submitted that the question regarding admissibility of the document is not revisable under Sec.115 of C.P.C. Contending that the order passed declining to admit the document arises out of the trail proceedings and that the same is not revisable, the learned counsel has relied upon Mahboob Alam v. Smt.Nasira Begam, A.I.R.1977 Raj.189. It is further submitted that the defendants have raised a definite plea that the document is a mortgage and is inadmissible in evidence. The learned counsel for the revision petitioner has placed reliance upon the decision of the Supreme Court in Bipin Shantilal Panchal v. State of Gujarat and another, (2001)3 S.C.C. 1 . The learned counsel for the respondents/defendants has submitted that the observation of the Supreme Court would not apply when the objection is raised on the stamp duty payable. Placing reliance upon the decision reported in A.C. Lakshmipathy v. A.M.Chakrapani Reddiar and five others, (2001)1 M.L.J.1: (2001)1 C.T.C. 112 , the learned counsel has submitted that when the document is insufficiently stamped and not registered, the trial Court has rightly declined to admit the document and the impugned order does not suffer from any infirmity warranting interference. 9. Upon consideration of the contention of both sides, the impugned order and the document in question and other materials on record, the following points arise for consideration in this revision. 9. Upon consideration of the contention of both sides, the impugned order and the document in question and other materials on record, the following points arise for consideration in this revision. (i) Whether the lower Court was right in finding that the document is only a mortgage deed which requires stamp duty and is inadmissible for want of registration? (ii) Whether the impugned order declining to admit the document even at the stage of examination of P.W.1 is correct and whether the impugned order could be interfered with exercising the revisional jurisdiction under Sec.115 of C.P.C.? 10. The main contention urged on behalf of the respondent is that the document is a mortgate deed and that it is un-stamped and unregistered and is inadmissible in evidence under Sec.35 of the Indian Stamp Act and under Sec.49 of the Registration Act. It is further contended that Sec.35 of the Indian Stamp Act prohibits the use of un-stamped and insufficiently stamped document for any purpose. Further it is contended that the document being in the nature of mortgage, the document is to be registered. If the suit document is a mortgage under Sec.35 of Indian Stamp Act, instrument shall not be admitted or looked into for any purpose unless such instrument is duly stamped. Further, if the document is found to be mortgage, it needs to be registered. Hence, the main point for consideration is whether the trial Court (at the initial stage) was right in finding that the document is in the nature of a mortgage which needs to be registered. 11. The document in questiion is styled as "Conditional Sale Agreement" executed in favour of K.Achutha Chetty-plaintiff. Though the document is termed as "Conditional Sale Agreement", by a reading of the document it is seen that the document is two faceted. Firstly that the document is in the nature of mortgage as is seen from the following recitals: "Whereas, we have mortgaged with possession the properties to you for Rs.1,30,000 (One lakh thirty thousand only). The properties which are possessed and enjoyed by us with marketable rights... We hereby acknowledge the receipt of the mortgage amount of Rs.1,30,000." The defendants have agreed that they have received and acknowledged the mortgage amount. the said amount is also stated to be sale price of the said properties. 12. The properties which are possessed and enjoyed by us with marketable rights... We hereby acknowledge the receipt of the mortgage amount of Rs.1,30,000." The defendants have agreed that they have received and acknowledged the mortgage amount. the said amount is also stated to be sale price of the said properties. 12. In the second limb viz., if the mortgage amount is not repaid, the parties have agreed to treat the transaction as Agreement of Sale and the mortgage amount as the sale price of the entire properties. This is made clear by the following recitals: "... and if we are unable to repay you the entire mortgage amount, we undertake to accept the mortgage amount acknowledged by us, as the sale price of the entire properties and to execute and register the sale deed of poperties in favour of you or your nominee without demanding any further consideration from you, after 30.5.1989 and before 5.6.1989. And in case if we are unable to repay you the enitre mortgage amount together with any further payments, if any received by us from you, you have to pay us the balance amount if any, only after the execution of the sale deed as it is agreed that, the sale price of the properties including item No.3, property is Rs.1,60,000 (one lakh sixty thousand only) and you are put in prossession of 2 items of properties in schedule“. 13. Thus the nature of document is not unambiguous. According to the plaintiff, when the agreement amount was not paid as agreed by the parties, the second limb of the document viz., that the document is to be treated as Agreement of Sale comes into force. Thus, the terms of the document evidencing the transaction is not clear: but ambiguous. Therefore, it is necessary to consider the meaning of the recitals in the document by reference to the intention of the parties either by the surrounding circumstances or the conduct of the parties. Thus, whether it is a mortgage or an agreement of sale, it could be seen at the time of trial and in fact, the nautre of the document is the subject matter of the suit itself. Hence, the nature of the document and the intentiion of the parties could be determined only when the parties adduced evidence and by appreciating the recitals in the light of the evidence adduced by the parties. Hence, the nature of the document and the intentiion of the parties could be determined only when the parties adduced evidence and by appreciating the recitals in the light of the evidence adduced by the parties. At the initial stage, merely by looking into the recitals of the document, it cannot be concluded that the document is in the nature of mortgage. 14. It may be argued that the transaction being reduced into writing, in view of Sec.91 of the Indian Evidence Act, the parites cannot lead oral evidence in respect of the transaction. It is relevant to note that Sec.91 of the Indian Evidence Act prohibits oral evidence only regarding the terms of the contract or other evidence relating to the terms of the contract. Sec.91 of the Indian Evidence Act does not prohibit the parties to lead oral evidence in respect of the nature of the contract as well as the oral agreement entered into between the parties simultaneously along with the document. It is well settled that if there is ambiguity in the language employed and the recitals there on, the intention of the parties may be ascertained by adducing extrinsic evidence. In Bhaskar Waman Joshi v. Narayan Rambilas, A.I.R.1960 S.C. 301,considering the construcion of document, the Supreme Court has observed that” The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances. If the words are plain and unambiguous they must, in the light of the evidence of surrounding circumstances, be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may be, by law, be permitted to be adduced to show in what manner the language of the deed was related to existing facts. “ Thus, the construction of the document and the intention of the parties could be determined only when the parties adduce evidence. Only upon such adducing of evidence and in the light of the evidence adduced and the surrounding circumstances and the conduct of the parties, the Court could determine the nautre of the transaction. The impugned order finding that the document is in the nature of morgage deed is too premature and cannot be sustained. 15. Only upon such adducing of evidence and in the light of the evidence adduced and the surrounding circumstances and the conduct of the parties, the Court could determine the nautre of the transaction. The impugned order finding that the document is in the nature of morgage deed is too premature and cannot be sustained. 15. Contending that the order holding that the document is inadmissible for want of stamp duty and registration is not revisable under Sec.115, C.P.C., the learned counsel for the respondents/defendants relied upon the decision in Mahboob Alam v. Smt.Nasira Begam and others, A.I.R.1977 Raj.189, in which, the Rajasthan High Court has held that:: ”the order of the trial Court holding that the document in question was compulsorily registrable and of registration, even if it may be erroneous, does not relate to the jurisdiction of that Court, and therefore, the provisions of Sec.115, C.P.C. are not attracted to such an order. The question of construction of a document is a part of the proceedings of the Court and in case a mistake is committed by it in construing the document, the order passed by the trial Court in such matters may at best suffer from an error of law but the same has no concern with the jurisdiction of that Court. The trial Court had jurisdiction to entertian the suit and to decide all questions raised therein. There is no error or irregularity in the exercise of jurisdiction nor there is a question of failure to exercise jurisdiction in the present case. If any error has crept in the decision of the trail Court on the aforesaid question, the same can be corrected in the appeal that may be filed against the decree, which will ultimately be passed in the suit. Harak Chand v. State of Rajasthan, 1970 Raj. L.W. 320 (F.B.), Foll". The above case arose where the document was found to be compulsorily registrable. The case in hand stands on different footing where the nature of document itself is in dispute. The finding regarding the nature of document cannot be said to be incidental to the proceedings. 16. Harak Chand v. State of Rajasthan, 1970 Raj. L.W. 320 (F.B.), Foll". The above case arose where the document was found to be compulsorily registrable. The case in hand stands on different footing where the nature of document itself is in dispute. The finding regarding the nature of document cannot be said to be incidental to the proceedings. 16. Contending that the revision under Sec.115, C.P.C. is not maintainable, the learned counsel for the respondents/defendants has submitted that the order declining to admit the document has not reached the finality and hence, the order does not satisfy the condiditions under Sec.115, C.P.C. Under Sec.115, C.P.C., the High Court shall not exercise its power of revision except where if such Subordinate Court appears: (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irreuglarity. 17. In Major S.S.Khanna v. Brig R.J.Dillon, A.I.R.1964 S.C. 497: (1964)4 S.C.R.. 409 , the Supreme Court considered the expression "any case which has been decided" in Sub-sec.(1) of Sec.115, C.P.C. and held that the expression ‘case’ is a word of comprehensive import and includes civil proceedings other than suits and is not restricted by anything contained in the said section to the entirety of the proceeding in a civil Court and to interpret the expression ‘case’ as an entire proceeding only and not a part of the proceeding would impose an unwarranted restriction on the exercise of prowers of superintendence by the High Court. "The Proviso to Sub-sec.(1) of Sec.115 puts a restriction on the power of the High Court in asmuch as the High Court shall not, under this section vary or reverse any order made or any order deciding a issue in course of a suit or other proceedings, except where (i) the order made would have finally dispose of the suit or other proceedings or (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under Clause (a), the High Court would be justified if the said order finally disposes of the suit or other proceedings", Prem Bakshi and others v. Dharam Dev and others, (2002)5 C.T.C. 479. Under Clause (a), the High Court would be justified if the said order finally disposes of the suit or other proceedings", Prem Bakshi and others v. Dharam Dev and others, (2002)5 C.T.C. 479. The order declining to admit the document even at the intial stage of examination of P.W.1 causes serious prejudice to the right of the plaintiff. The plaintiff’s entire claim is based on the document. Any refusal to admit the document causes serious prejudice to the plaintiff. It may be that after conclusion of the trial, the Court may arrive at the conclusion that the document is only a mortgage/conditional sale which requires stamp duty. But at the initial stage, the document cannot be shut out. During trial, the document ought to have been received “subject to objection” reaised by the defendants. 18. In Bipin Shantilal Panchal v. State of Gujarat and another, (2001)3 S.C.C.1 the Supreme Court has expressed its disapproval in passing elaborate order on the marking of documents and informing the parties to move the higher forum and thereby delaying the trial proceedings. The Supreme Court has observed thus: “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 objection document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to if such 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.) The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence-taking stage, would not be vested on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. First is that the time in the trial Court, during evidence-taking stage, would not be vested on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the Superior Court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.” 19. Drawing attention of the Court to the above decision, the learned counsel for the respondents/defendants has submitted that the above observation of the Supreme Court is not applied when the objection relates to deficiency of the stamp duty of the document. It is further submitted that the Supreme Court has observed that the Court has to decide the objection regarding the deficiency of stamp duty before proceeding further. No doubt, the decision of the Supreme Court is not applicbale when the objection relates to deficiency of stamp duty of a document. In the case in hand, the payment of stamp duty itself is in dispute. In other words, when the nature of document is in dispute, the question of payment of stamp duty is to be determined in reference to intention of the parties which is to be appreciated in the light of the evidence to be adduced, surrounding circumstances and the conduct of the parties. It is open to the defendant to raise such objection at the time of arguments. 20. The learned Subordinate Judge was not right in declining to admit the document even at the initial stage-when P.W.1 was in the box. The impugned order declinging to admit the document suffers from material irregularity and cannot be sustained. The impugned order is to be set aside and the revision petition is to be allowed. 21. Therefiore, the order of Subordinate Judge, Uthagamandalam made in O.S.No.218 of 1996, dated 9.6.1999 is set aside and the revision petition is allowed. The impugned order declinging to admit the document suffers from material irregularity and cannot be sustained. The impugned order is to be set aside and the revision petition is to be allowed. 21. Therefiore, the order of Subordinate Judge, Uthagamandalam made in O.S.No.218 of 1996, dated 9.6.1999 is set aside and the revision petition is allowed. The learned Subordinate Judge, Uthagamandalam is directed to admit the document “subject to objection” by the defendants and expedite the trial and dispose of the suit in accordance with the law expeditiously. In the circumstances of the case, there is no order as to costs. Consequently, C.M.P.No.13742 of 1999 is closed.