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2011 DIGILAW 30 (KAR)

Vijayalakshmi v. Nagaraju

2011-01-07

RAM MOHAN REDDY

body2011
JUDGMENT 1. The rejection of plaintiff’s I.A.No.6 under Order 13 Rule 4 CPC to consider the admissibility of the document dated 9/7/2002 marked as Ex.D1 by order dt. 25/10/2010 in O.S.No.83/06 of the Senior Civil Judge & JMFC, Madhugiri, is called in question in this petition. 2. Petitioner instituted O.S.No.83/06 arraigning the respondent herein as the defendant to recover possession and for arrears of rent of Rs.45,000/- as also enquiry into mesne profits from the date of suit till the date of delivery of possession. The defendant, on notice, entered appearance, resisted the suit by filing written statement. In the premise of pleadings of parties, the trial Court framed issues and the parties entered trial. After the closure of plaintiff’s evidence, the defendant entered upon his evidence, whence on 28/1/2000 introduced 8 documents marked unopposed, as Ex.D1 to D8, as neither the petitioner nor her counsel were present before court. The petitioner on 27/11/2010 filed I.A. No.6 under Order 13 Rule 4 CPC to re-consider the admissibility of the document dt.9/7/2002 marked as Ex.D1 on the premise that it was insufficiently stamped and ought to be impounded and direction be issued to the defendant to pay deficit stamp duty and penalty. According to the petitioner, the document being an unregistered mortgage deed allegedly executed by the vendors in title of the petitioner in favour of the respondent/defendant, covenanted that possession of the immovable property was delivered to the defendant as a mortgagee in possession, engrossed on stamp paper value Rs.100. It was the specific case of the petitioner that the document being an unregistered mortgage deed attracted the incidence of stamp duty under Art.34(a) of the Karnataka Stamp Act, 1957, for short `Act’. 3. That application was opposed by filing statement of objections of the respondent/ defendant interalia contending that Order 13 Rule 4 is inapplicable and the absence of the counsel at the time of marking of the documents is not a ground to consider the admissibility of the document. The court below having framed a point for consideration, observed that Ex.D1, the mortgage deed, when marked in evidence unopposed on 28/1/2010, the question of admissibility of the documents on the premise that it was insufficiently stamped, at a later stage of the proceedings, is impermissible, following the decision of this court reported in ILR 2007 KAR 2786 and accordingly by the order impugned, rejected the application. 4. 4. Although learned Counsel for the petitioner contends that Section 33 to 37 of the `Act’ casts a duty on the court to examine the document over sufficiency of stamp duty, before its admission in evidence, I am not impressed by that submission. I say so because, the Apex Court in KASHINATHSA YAMOSA KABADI, ETC. VS. NARSINGSA BHASKARSA KABADI, ETC. reported in AIR 1961 SC 1077 at paragraph 23 observed thus: “x x x The documents were admitted in evidence by the trial Court and no question of admissibility of those documents can be resisted at a later stage of the suit or in appeal (see Sec.37, Stamp Act)”. A learned single Judge of this court in N. S. LAKSHMAIAH SETTY VS. R. GOVINDAPPA reported in 1964 (2) MYSORE L.J. 145, while considering the scope of Secs. 33 to 37 of the Karnataka Stamp Act, having regard to a line of reported opinions of this court and that of the Apex Court, observed thus: “It is also clear from the decisions already cited above, that where the court fails to take action under Sec.34 and admits a document in evidence, Sec.35 comes into operation subject only to the exception provided in Sec.58. The result is that so far as the parties themselves are concerned, the action of the court admitting the documents in evidence is final and cannot be called in question at any subsequent stage of the suit or in any appeal or revision arising there from, and that so far as the interests of revenue are concerned, they are sought to be protected under Sec.58 under which the power to determine and declare the proper duty and penalty payable in respect of the instruments is vested in the court of appeal or references and not in the original court. It is clear therefore that once Sec.35 comes into operation, the original court loses the power not merely to review its decision, express or implied, to receive the document in evidence, but also to levy any stamp duty or penalty in respect of the instrument”. 5. In SHYAMAL KUMAR ROY VS. SUSHIL KUMAR AGARWAL reported in AIR 2007 SCW 234, the Apex Court, having noticed on facts that a development agreement dt. 5. In SHYAMAL KUMAR ROY VS. SUSHIL KUMAR AGARWAL reported in AIR 2007 SCW 234, the Apex Court, having noticed on facts that a development agreement dt. 16/1/1995 was exhibited without any objection on the part of the appellant on 17/2/2003, the parties having adduced their respective evidence on 16/2/2005 and when the matter was posted for arguments on the suit on which date the appellant filed two applications, one for recalling the order dt. 17/2/2003 and another to send the document to the Collector for impounding thereon in terms of Sec.38 of the Indian Stamp Act, the documents having been marked without any objection and the trial continued, it was held that once the document is marked in evidence, the court is prohibited from reopening the same. 6. So also is the view of R. V. Raveendran, J. as he then was, in K. AMARNATH VS. SMT. PUTTAMMA reported in 2000 (4) KAR.L.J. 55 , observing that once a document is admitted in evidence, it cannot be called in question thereafter, on the ground that it was not duly stamped. In other words, once the court admits a document, even wrongly, such admission becomes final and cannot be reopened and therefore there was a need for diligence, not only on the part of the opposite counsel, but also on the part of the court having regard to the statutory obligation under Sec.33 of the Act. 7. Keeping in mind the observations of this court and that of the Apex Court in the reported opinions, supra, it is needless to state that Ex.D1, marked in evidence unopposed on 28/1/2010 before the trial Court, I.A.No.6 under Order 13 Rule 4 CPC filed by the petitioner to recall the said order marking the document on the premise that the document was insufficiently stamped, was justifiably rejected. 8. Even otherwise, the document termed as a mortgage deed, though unregistered but on stamp paper valued Rs.100/-, it is elsewhere held that, for a collateral purpose of establishing the nature of possession of the property by a party, is admissible in evidence even if insufficiently stamped. 8. Even otherwise, the document termed as a mortgage deed, though unregistered but on stamp paper valued Rs.100/-, it is elsewhere held that, for a collateral purpose of establishing the nature of possession of the property by a party, is admissible in evidence even if insufficiently stamped. It is not known as to how the document is purported to be put to use by the defendant ie., as to whether it is for establishing the nature of possession of the defendant over the suit schedule property or for any other purpose and therefore on that ground too, the petitioner is disentitled to question the order dt. 28/1/2010, marking the unregistered mortgage deed as Ex.D1 in the suit. In the result, petition being without merit is accordingly rejected.