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2012 DIGILAW 1579 (JHR)

Ramesh Chandra Dubey v. Kamal Singh Surana

2012-11-02

P.P.BHATT

body2012
Order Heard the parties. 2. The petitioners, by way of filing this petition under Article 227 of the Constitution of India, have prayed for quashing and setting aside order dated 7.4.2011 passed by the learned Sub-Judge-I, Deoghar, whereby, the petition of the plaintiff -petitioner for accepting the original sale deed No. 5065, which is already exhibited as Ext.- 7 in Title Suit No. 138/2008, was dismissed. 3. Learned counsel for the petitioner submitted that the court below has committed illegality while rejecting the application as there is no interpolation in the contest of the sale deed in question. Learned counsel for the petitioner by referring Annexure 2 pointed out that the said Circular was issued by the State of Bihar, Department of Registration dated 26.5.1997 and the petitioners came to know about this circular only after the permission was accepted by the court for withdrawal of the document. Learned counsel for the petitioner further submitted that to this effect the averments have been made in the rejoinder. It is further submitted that the petitioners submitted the said document before the Registrar for fulfilling the requirement of law in terms of the Circular dated 22.5.1997 issued by the State of Bihar and therefore, the petitioners have not committed any illegality. It is further submitted that the document in question is not likely to cause any prejudice to the respondent-defendant. However without appreciating this fact, the court below has rejected the application mainly on the ground that the petitioners have committed fraud with the court. It is further submitted that the court below has failed to appreciate the conduct of the applicant, which is bona fide conduct. Learned counsel for the petitioners in support of his submission has also referred to and relied upon the judgment reported in 2001 (3) SCC 1 . It is further submitted that in view of the circular dated 26.5.1997 issued by the Registration Department, Govt. of Bihar, wherein it is provided that the sale deed was executed at Kolkata and if stamp duty is not properly paid according to the rate prescribed by the State of Bihar then the party can make payment according to the prescribed Government Rate and therefore, the petitioner being a bona fide purchaser made payment to the deficit stamp duty of Rs. 1520/- and Registration duties of Rs. 600/- over the said original sale deed at Deoghar. 1520/- and Registration duties of Rs. 600/- over the said original sale deed at Deoghar. Learned counsel for the petitioners further submitted that the said document was re-submitted before the learned Sub-Judge in Title Suit No. 17/98 in terms of undertaking given to the Court. It is submitted that there is no material change in the said document except payment of deficit court fee, which required in law and this being the bona fide action of the petitioner, the court below was required to appreciate the said conduct of the petitioner and thereby, allowed the petition to produce the said document but instead of appreciating the genuinity and bona fide attempt made by the petitioners, the court below has passed the order against the petitioners by observing that the action of the petitioners is nothing but to commit a fraud upon the court. 3. As against this, the learned counsel for the respondent by referring order dated 7.4.2011, pointed out that the Court below has not committed any error while passing the said order. Learned counsel for the respondent by referring counter affidavit filed by the defendant and by referring order dated 16.8.2004 (Annexure-C) pointed out that the court below has rightly rejected the application dated 2.6.04 filed by the present petitioners. It is further submitted that the court below after careful consideration of the rival submissions made by the parties including the judgment cited by the counsel for the plaintiff-petitioners, rejected the said application on merits. It is further submitted that the said order was not challenged by the petitioners and the said order has attained its finality. It is further submitted that the petitioners were granted permission by the Court for withdrawal of the original sale deed so as to enable them to produce before the another court in Title Suit No. 138/08 but instead of producing the said document before the said Court, the petitioners approached the office of the Sub-Registrar and completed the formalities of making payment of deficit stamp and thereafter they produced the same before the learned Sub Judge in Title Suit No. 138/08. It is further submitted that the petitioners have made an attempt to circumvent the previous order passed in the proceeding and thereby the petitioners have committed fraud with the court. It is further submitted that the petitioners have made an attempt to circumvent the previous order passed in the proceeding and thereby the petitioners have committed fraud with the court. Learned counsel for the respondent has drawn attention to this Court to the provision contained in Order XIII Rule 4, whereby the procedure for endorsement of document submitted in evidence has been prescribed. It is further submitted that once the document is admitted and exhibited or it is signed or made initial by the learned Judge and therefore, it is not legally permissible for any of the parties to make any change in the said document. It is further submitted that in the instant case, under the pretext of producing the said document before the another court, the petitioners have withdrawn the said document and the said permission has been misused by the petitioners and thereby the petitioners have committed fraud to the court. It is further submitted that there is no merit in the petition and the same may be rejected. 4. Considering the aforesaid rival submissions of the parties and from perusal of the impugned order and the material produced on record including the counter affidavit, it appears that the learned court below has rejected the application made by the petitioners for taking the original document exhibited as Ext. - 7 on record on the ground that the petitioners have committed fraud with the court by making the changes in the said document. It further appears that the petitioners were granted permission by the court to take away the said document so as to enable them to produce the same before the another court in Title Suit No. 138/08. But in stead of producing the said document in the original form, the petitioners submitted the said document before the office of the Sub-Registrar and thereby made payment of deficit stamp and thereafter produced the same before the court. From perusal of the order, it appears that the court below has compared the original one with the certified coy of the same, thereafter the court below has found remarkable change in the title of the said document, whereby, there is a mentioned about payment of deficit stamp. From perusal of the order, it appears that the court below has compared the original one with the certified coy of the same, thereafter the court below has found remarkable change in the title of the said document, whereby, there is a mentioned about payment of deficit stamp. It also appears that the petitioners earlier filed an application for withdrawal of the said document for the purpose of making payment of deficit stamp before the Registry authority but the said application was rejected by the court vide its order dated 16.8.04. It further appears that the said order was not challenged by the petitioner by filing any petition or review application. It appears that the petitioners with a view to circumvent the court process and thereby made an attempt to get modified the said document by making payment of deficit stamp, this conduct of the petitioner cannot be treated as bona fide attempt and that is why, the application made by the petitioners was rejected by observing that it is nothing but the fraud committed by the petitioner upon the court. I have also perused the provision as contained in Order XIII Rule 4, which runs as under; “4. Endorsements on documents admitted in evidence.-(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:— (a) the number and title of the suit, (b) the name of the person producing the document, (c) the date on which it was produced, and (d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge. (2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge”. In view of the aforesaid provision, once the document is admitted in evidence, it is not permissible to the parties to make any alteration without permission of the Court but in the present case, the petitioners have misused the permission of the Court and without permission, they made changes in the said document. In view of the aforesaid provision, once the document is admitted in evidence, it is not permissible to the parties to make any alteration without permission of the Court but in the present case, the petitioners have misused the permission of the Court and without permission, they made changes in the said document. It may be legal requirement of furnishing deficit court fee under the Registration Act or the Circular dated 26.5.97 issued by the Govt. of Bihar but when once the document exhibited before the Court, necessary permission is required to be obtained. But in the instant case no such permission was obtained by the petitioners and therefore, the court below has after careful consideration of the submissions made before it, rejected the said application and, therefore, this Court is of the view that the court below has not committed any illegality or irregularity while exercising his jurisdiction vested upon it. I have also perused the judgment reported in 2001 (3) SCC 1 , cited by the learned counsel for the petitioners, but the same is not applicable to the facts and circumstances of the present case. 5. In view of the above proposition, this Court is of the view that the court below has not committed any irregularity and illegality while exercising the jurisdiction vested upon it and, therefore, no intervention warranted by this Court under Article 227 of the Constitution of India. 6. With the aforesaid observation, this writ petition stands dismissed. 7. Consequently, Ad interim order granted earlier by this Court also stands vacated.