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2010 DIGILAW 602 (AP)

Burra Anitha v. Elagari Mallavva

2010-07-12

G.BHAVANI PRASAD

body2010
JUDGMENT : 1. The docket order, dated 03-02-2010 in I.A.No.383 of 2009 in O.S.No.103 of 2009 on the file of the Principal Junior Civil Judge’s Court, Siddipet, led the plaintiff to approach this Court with this Revision. 2. While dealing with the petition for temporary injunction, the objection of the plaintiff against marking a simple sale deed on the ground of insufficiency of stamp duty and want of registration was ruled out by the trial Court by the impugned order. Referring to three precedents from this Court, the trial Court was of the opinion that it is not open to the plaintiff to insist upon the Court to undertake an independent enquiry into the admissibility of the document at the interlocutory stage to pronounce upon the said document once for all. While recognizing the right of the plaintiff to take an objection if there is a legal infirmity or illegality, the trial Court opined that a document, which is not stamped or registered, can be marked in the interlocutory applications and the objection taken by the plaintiff is to be considered while disposing of the interlocutory application. Opining that there should be no objection for marking the document, the document was directed to be marked though there is no registration and sufficient stamp duty. 3. The plaintiff challenges the said order as being in violation of the mandate of Section 35 of the Stamp Act and also the mandatory provisions of the Code of Civil Procedure in this regard and desires the marking of the inadmissible document to be reversed. 4. Smt. D. Radhika, learned counsel for the Revision Petitioner/plaintiff, reiterated the contentions of the plaintiff, while none appeared for the respondents though respondents 2 and 3 and the counsel for the first respondent before the trial Court were personally served with the notices of this Revision. 5. The point for consideration is whether the stand taken by the trial Court about the marking of a document, which is unregistered and insufficiently stamped, at the interlocutory stage is sustainable. 6. 5. The point for consideration is whether the stand taken by the trial Court about the marking of a document, which is unregistered and insufficiently stamped, at the interlocutory stage is sustainable. 6. Out of three precedents cited before the trial Court, in A.N. SARASWATHI v. G. MUNIKRISHNA REDDY 1997 (2) ALT 823 , the learned Judge pointed out that the Code of Civil Procedure and the Civil Rules of Practice in specified provisions direct that the procedure in regard to the suits shall be followed as far as it is applicable to all proceedings in any Court of civil jurisdiction. The learned Judge directed marking of the documents with the consent of the parties only in the interlocutory application for interim injunction and set aside the order directing admission of inadmissible documents. 7. Considering the question in T. BHOPAL REDDY AND ANR. V. K.R. LAKSHMI BAI AND ANR. 1998 (1) ALD 770 (DB), a Division Bench of this Court overruled the decision of a learned single Judge in G. SAMBRAJYAM v. P. MAHALAKSHMMA AND ORS 1995 (1) ALD 358 , holding that there is no provision in Civil Rules of Practice for marking documents as exhibits at the stage of interlocutory matters. The Division Bench opined that the documents marked for the purpose of determination of any interlocutory application cannot be treated as evidence per se, but would enable the Court to prima facie come to a conclusion about the merits or demerits of the contentions advanced. For that purpose, the Court should necessarily be able to locate the documents and know their contents and in the absence of any specific rule, the Courts would not be justified in not giving any marking at all to such of the documents on which both sides would rely on. Therefore, the Division Bench held that it was nowhere envisaged that the case of the contestant parties can only be decided on affidavit and not on any other material. 8. Therefore, the Division Bench held that it was nowhere envisaged that the case of the contestant parties can only be decided on affidavit and not on any other material. 8. From a reading of these two decisions together, it is clear that even at the interlocutory stage, documents relied on by the parties can and have to be marked for the purposes of clarity to the Court and to enable the Court to appreciate the contents of the said documents with reference to the contentions of the parties and it would be more appropriate to have such documents marked in such interlocutory enquiry with the consent of both parties. 9. Coming to any objections about the admissibility of the documents, another learned Judge of this Court dealt with the issue in S. RAVINDER v. G. DASARATH 2004 (4) ALD 851 and His Lordship was of the opinion that it is not open for a party to insist upon the Court to undertake an independent enquiry into the admissibility of a document at the stage of interlocutory adjudication and pronounce upon it once for all. His Lordship was dealing with an Application under Order 39 Rule 1 of Code of Civil Procedure and was referring to Rule 60 of Civil Rules of Practice and was of the opinion that in the absence of recording of oral evidence at the stage of interlocutory applications, marking of documents cannot be on the same plane as is done at the stage of recording evidence in the suit. It was opined that if a document is subjected to rules of evidence, even at the stage of consideration of interlocutory applications, without there being any oral evidence, by the same logic, they should be permitted to be on record of the suit without any further subjection to oral evidence or scrutiny as to relevancy and proof. Such a stage, in His Lordship’s opinion, is to be relegated to the one of recording evidence, for the disposal of the suit. The objection in the case before His Lordship was about want of registration of the agreement of sale in question and it may be noted that there was no objection as seen from the Judgment about any want or insufficiency of stamp. The objection in the case before His Lordship was about want of registration of the agreement of sale in question and it may be noted that there was no objection as seen from the Judgment about any want or insufficiency of stamp. The learned Judge still recognized the right of a party to raise an objection even at the stage of consideration of interlocutory application if a document suffers from a basic legal infirmity or illegality. 10. In that background, it may have to be noted that the prohibition under Section 49 of the Registration Act against the admissibility of an unregistered document is not absolute unlike the prohibition under Section 35 of the Stamp Act. Under the former the document can still be admitted for a collateral purpose into evidence, while under the latter the document cannot be looked into for any purpose. 11. In connection with the prohibition under Section 49 of the Registration Act and Section 35 of the Stamp Act, Smt. D. Radhika, learned counsel for the Revision Petitioner/plaintiff, relied on three precedents of this Court commencing from S. REDDY v. JOHANPUTRA AIR 1972 ANDHRA PRADESH 373, in which it was held that no part of a document, which is chargeable with duty, can be received in evidence, even if that document is sought to be admitted only for a collateral purpose, whereas an unregistered document can still be used for a collateral purpose even if it requires registration. The principle was reiterated in AKKAM LAXMI v. THOSHA BHOOMAIAH 2002 (5) ALT 624 , wherein the legal position was reiterated that even allowing a copy of the instrument to be introduced as secondary evidence is nothing but circumventing the provisions of Section 35 of the Stamp Act if the original instrument, which is required to be stamped, was not duly stamped. Similarly in the decision reported in MANDA LAXMI RAJAM v. KANAPARTHI LAXMI BAI @ LAXMI AND OTHERS 2008 (5) ALD 279 , it was pointed out that the original document not properly stamped and not registered could not have been subjected to collection of the required stamp duty and penalty unless the original is produced. Unless the stamp duty and penalty is paid, the document will be inadmissible in evidence for any purpose and the learned Judge refused to consider any admission of such document. Unless the stamp duty and penalty is paid, the document will be inadmissible in evidence for any purpose and the learned Judge refused to consider any admission of such document. In that view, it is clear that Section 35 of the Stamp Act makes a document inadmissible for any purpose if it was not stamped or insufficiently stamped unless the required stamp duty and penalty is paid, whereas an unregistered document, which requires registration but was not registered, can still be admitted into evidence for a collateral purpose. 12. The principle laid down by His Lordship in S. RAVINDER’s case (4 supra) has to be understood with reference to such distinction and His Lordship was disinclined to permit undertaking an independent enquiry into the admissibility of a document at the stage of interlocutory enquiry when the agreement of sale was objected to be admitted into evidence for want of registration, whereas His Lordship himself recognized the right of the party to raise an objection even at the stage of consideration of an interlocutory application if the document suffers from any basic legal infirmity or illegality. This distinction is lost sight of by the trial Court. When the objection to the document in question was not only on the ground of want of registration, but also on the ground of want of sufficient stamp, the party producing the document was not stated either to have offered or to have made any attempt to pay required stamp duty and penalty on the document to enable consideration of the admissibility of the document for any collateral purpose and in view of the absolute prohibition under Section 35 of the Stamp Act, looking into the document, even for the purposes of an interlocutory application, will be overlooking a basic legal infirmity or illegality. The trial Court went wrong in appreciating the ratio of the precedents cited before it as permitting the marking of an unstamped and unregistered document in an interlocutory enquiry and opining that the objections will be considered while disposing of the interlocutory application. The trial Court went wrong in appreciating the ratio of the precedents cited before it as permitting the marking of an unstamped and unregistered document in an interlocutory enquiry and opining that the objections will be considered while disposing of the interlocutory application. Section 60 of Civil Rules of Practice provides for marking of the documents in interlocutory proceedings in the same manner as in a suit and under the circumstances, the impugned order is liable to be set aside and the trial Court is to be directed to determine the objections of the Revision Petitioner/plaintiff against the admissibility of the document on the ground of insufficiency of stamp and want of registration. 13. Accordingly, the docket order, dated 03-02-2010 in I.A.No.383 of 2009 in O.S.No.103 of 2009 on the file of the Principal Junior Civil Judge’s Court, Siddipet, is set aside and the trial Court shall determine on merits, in accordance with law, the objections of the Revision Petitioner/plaintiff against the marking and admissibility of the document on the grounds of insufficiency of stamp and want of registration before marking the document during the interlocutory enquiry. 14. The Civil Revision Petition is allowed accordingly. No order as to costs.