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2011 DIGILAW 1122 (AP)

Ahmed Abdul Raheem v. Mohd. Abdul Aziz

2011-12-09

R.KANTHA RAO

body2011
Judgment : 1. This civil revision petition is filed under Article 227 of the Constitution of India against the order dated 09.09.2009 passed by the Senior Civil Judge, Nizamabad in I.A.No.769 of 2009 in O.S.No.160 of 2004. 2. I have heard Sri V.Ravikiran Rao, learned counsel appearing for the revision petitioners. None appeared for the respondents/plaintiffs. 3. The respondents filed the suit before the Senior Civil Judge, Nizamabad for recovery of an amount of Rs.1,88,000/- with interest. The suit is based on agreement of sale dated 09.10.2001 and the plaintiffs sought to recover the advance of Rs.1,88,000/-allegedly paid by them together with interest under the agreement. They filed the suit document i.e. agreement to sell dated 09.10.2001 along with the suit. The revision petitioners, who are the defendants in the suit, raised an objection in the written statement that the suit document is inadmissible in evidence as it is not sufficiently stamped and it is not registered. They also contended that the said document is virtually a sale deed in view of Section 47-A of the Schedule 1-A of the Indian Stamp Act and it is not a mere agreement of sale. 4. It is the version of the revision petitioners that the respondents got the document scrutinized in the office of the Senior Civil Judge, Nizamabad and obtained an endorsement as if the said document is liable for payment of stamp duty and penalty as agreement of sale. It is further contended that three years after obtaining the said order by the learned Senior Civil Judge, they paid the stamp duty and penalty. 5. Thereafter, the learned counsel appearing for the respondents, who are defendants in the trial Court sought to mark the suit document as exhibit. The petitioners’ counsel raised objection for marking the document and wanted to make submission on the admissibility of the document. He also filed a memo to that effect reiterating the contention of the revision petitioners that the document is inadmissible as stamp duty and penalty was not collected in accordance with the provisions of Section 47-A of Schedule 1-A of the Indian Stamp Act and also on the ground that the document was not registered. He also filed a memo to that effect reiterating the contention of the revision petitioners that the document is inadmissible as stamp duty and penalty was not collected in accordance with the provisions of Section 47-A of Schedule 1-A of the Indian Stamp Act and also on the ground that the document was not registered. The revision petitioners further filed I.A.No.173 of 2009 under Order 13 Rule 3 of CPC read with Section 35 of the Indian Stamp Act to direct the respondents/plaintiffs to get the suit document dated 09.10.2001 impounded, in view of Article 47-A of the Schedule 1-A of the Indian Stamp Act. The respondents/plaintiffs filed counter in the said I.A. and after hearing both parties, the learned trial Court passed an order on 08.06.2009 to the effect that the said petition was filed in haste even before the document was sought to be marked and admitted in evidence and that the nature and admissibility of the document will be decided after hearing the counsel for the revision petitioners at the time of marking the document. 6. Subsequently, when the trial of the suit commenced, the respondents filed evidence affidavit of PW.1, wherein the impugned agreement of sale dated 09.10.2001 was sought to be marked as Ex.A.1. The learned counsel appearing for the revision petitioners/defendants raised objection for marking the document on the above stated grounds. He also filed a memo on 19.06.2007 stating the objection in writing and filed another memo on 01.07.2009 asking the Court that the objection may be taken on record. When the Court did not consider the said objections and posted the suit to 29.07.2009 for cross-examination of PW.1, the petitioners filed I.A.No.769 of 2009 under Order 13 Rule 3 of CPC read with Section 35 of the Indian Stamp Act to record their objection and to pass a judicial order on merits after marking the agreement of sale dated 09.10.2001 as Ex.A.1. The respondents/plaintiffs filed a counter in the said I.A. The learned trial Court after hearing either side at length dismissed the I.A.No.769 of 2009 filed by the revision petitioners on the ground that the suit stood posted for cross-examination of PW.1. Challenging the said order, the present revision petition is filed. 7. The respondents/plaintiffs filed a counter in the said I.A. The learned trial Court after hearing either side at length dismissed the I.A.No.769 of 2009 filed by the revision petitioners on the ground that the suit stood posted for cross-examination of PW.1. Challenging the said order, the present revision petition is filed. 7. The point for determination in the present revision petition is: Whether this Court in exercise of its jurisdiction under Article 227 of the Constitution of India can set aside the order passed by the trial Court and direct the trial Court to decide the objections raised by the revision petitioners as to the maintainability of the suit document dated 09.10.2001 and to pass reasoned judicial order and then to proceed further with the trial of the suit? 8. The order passed by the learned trial Court apparently reveals that it is passed without application of mind to the objection raised about the admissibility of the document and it cannot be said that the trial Court judicially determined the admissibility of the suit document. It may be true that the learned trial Court by mere marking the suit document as Ex.A.1 is not precluded from pronouncing upon the admissibility of the document at any time before the suit is finally disposed of. But the crucial issue to be determined is in the peculiar facts and circumstances of the case, wherein the revision petitioners/defendants have been constantly raising the objection as to the admissibility of the suit document whether the trial Court is justified in refraining from exercising its jurisdiction as to make a judicial decision on the admissibility of the suit document. The leaned counsel appearing for the revision petitioners relied on a decision reported in RAM RATTAN (DEAD) BY LEGAL REPRESENTATIVES v BJRANG LAL AND OTHERS AIR 1978 SC 1393 wherein the Supreme Court while dealing with identical situation held as follows: “When the document is tendered in evidence by the plaintiff while in witness box and objection is raised by the defendants that the document is inadmissible in evidence as it is not duly stamped or for want of registration, it is obligatory upon the trial Judge to apply his mind to the objection raised and to 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. This, 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 trial Judge that ‘objected, allowed subject to objection’, clearly indicate that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.” 9. From the judgment rendered by the Hon’ble Supreme Court above cited what all can be understood is that though the trial Court is empowered to pass a judicial order in respect of the admissibility of the suit document at any time before the suit is finally disposed of. When once an objection is raised by the defendants as to the admissibility of the document after it is tendered for marking in the course of the plaintiff’s evidence, the trial Court is under a duty to judicially decide and dispose of the objection raised by the defendant as to the admissibility of the document. In the instant case, the trial Court without straight away disposing of the objection raised by the revision petitioners/defendants as to the admissibility of the agreement to sell dated 09.10.2001 basing on which the suit is filed has been postponing to decide the issue in definitely and was bent upon lacking further steps to proceed with the trial without making decision on the crucial issue as to the admissibility of the suit document. The course adopted by the learned trial Court in the facts and circumstances of the present case is nothing but refusing to exercise the jurisdiction vested in it to decide on the admissibility of the suit document. The course adopted by the learned trial Court by postponing to make a decision on the admissibility of the document is illegal and requires interference of this Court under Article 227 of the Constitution of India. 10. The course adopted by the learned trial Court by postponing to make a decision on the admissibility of the document is illegal and requires interference of this Court under Article 227 of the Constitution of India. 10. For all the reasons mentioned above, the order dated 09.09.2009 passed by the Senior Civil Judge, Nizamabad in I.A.No.769 of 2009 in O.S.No.160 of 2004 is set aside. The trial Court is directed to pass a judicial order on the maintainability of the agreement dated 09.10.001 which is the suit document before proceeding to mark it as an exhibit prior to proceeding further with the trial of the suit. The revision petition is therefore, allowed. There shall be no order as to costs.