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2013 DIGILAW 1261 (MAD)

G. Ramamoorthy v. M. S. R. Sivakumar

2013-03-06

R.S.RAMANATHAN

body2013
Judgment :- 1. Plaintiff in O.S.No.676 of 1999 is the revision petitioner. 2. The suit was filed by the revision petitioner for permanent injunction and during the examination of DW1, Exs.B1 to B42 were marked on 18.10.2010 and when the case was posted for cross-examination, on 19.10.2010, a representation was made by the counsel for the plaintiff stating that documents Exs.B3, 5, 7 and 8 were not duly stamped and without paying stamp duty penalty, the documents cannot be received in evidence and accepting the representation made by the revision petitioner, the court below directed the first defendant to pay the stamp duty penalty for those documents. Thereafter, a memorandum was filed at the instance of the first defendant stating that having regard to the judgment reported in KALIYA PERUMAL v. DHANDAPANI (2010-2-LW 644), once a document is marked in evidence, objection under section 35 of the Stamp Act cannot be raised and section 36 of the Stamp Act prohibits such objection being raised at a later point of time and that memorandum was rejected by the court below on 17.2.2011 stating that the order passed on 19.10.2010 was a judicial order and the same cannot be questioned by filing a memorandum. Thereafter, the first defendant filed an interlocutory application to modify the order dated 19.10.2010 and that application was rejected without numbering the same by order dated 27.4.2011. Thereafter, on 6.6.2011, the court below, suo motu, reviewed the order dated 19.10.2010 holding that as per the judgment reported in 2010-2-LW 644, mere marking of documents would not make the documents admissible in evidence and the contents, admissibility and relevancy have to be proved by the party who placed the document before the court as Exhibit and recalled the order dated 19.10.2010. This order is challenged in this revision. 3. Mr. This order is challenged in this revision. 3. Mr. T.S. Baskaran, learned counsel for the revision petitioner submitted that the court below has no power to suo motu review the order and having passed the order dated 19.10.2010 calling upon the first respondent to pay the stamp duty penalty and confirmed the same by order dated 17.2.2011 by rejecting the memorandum filed by the first respondent and thereafter, rejecting the interlocutory application filed by the first respondent to the same effect without numbering the said application, the court below should not have passed the order on 6.6.2011 recalling its earlier order and the court below also has not properly appreciated the judgments of the Honourable Supreme Court in this regard and also the provisions of sections 33 and 35 of the Indian Stamp Act. The learned counsel further submitted that under section 36 of the Indian Stamp Act, once a document is admitted in evidence, such admission shall not , except as provided in section 61, be called in question at any stage of the same suit on the ground that the instrument has not been duly stamped. The court is not powerless calling upon the party to pay stamp duty penalty having regard to the provision of sections 33 and 35 of the Indian Stamp Act. He also relied upon the judgment reported in AVINASH KUMAR CHAUHAN v. VIJAY KRISHNA MISHRA ( (2009) 2 SCC 532 ) and RAM RATTAN v. BAJRANG LAL ( (1978) 3 SCC 236 ). 4. Mr. Ravichander, learned counsel for the first respondent submitted that having regard to the provisions of section 36 of the Indian Stamp Act, wherein a total prohibition is imposed to raise any objection regarding the admissibility of the document on the ground that the document was not duly stamped once the document was admitted in evidence, the court below has realised the mistake committed by it in directing the revision petitioner to pay stamp duty penalty for admitting the document in evidence and rectified the mistake by reviewing its own order and therefore, the order of the court below need not be interfered with. He further submitted that the court below has rightly relied upon the judgment in 2010-2-LW 644 wherein this court has held that once a document is admitted in evidence, it cannot be called in question at any stage of the suit and therefore, recalled its order which was wrongly made by the court below. 5. To appreciate the contention of the parties, we will have to see the provisions of sections 33, 35 and 36 of the Stamp Act. They are as follows:- "33. Examination and impounding of instruments – (1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same. (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed: Provided that— (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898.); (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf. (3) For the purposes of this section, in cases of doubt,-- (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons in charge of public offices. 35. Instruments not duly stamped inadmissible in evidence, etc. (3) For the purposes of this section, in cases of doubt,-- (a) the State Government may determine what offices shall be deemed to be public offices; and (b) the State Government may determine who shall be deemed to be persons in charge of public offices. 35. Instruments not duly stamped inadmissible in evidence, etc. – No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that— (a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion; (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it; (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act. 36. 36. Admission of instrument where not to be questioned - Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." 6. Section 33 casts a duty upon every person who is in charge to receive in evidence and every person in charge of a public office before whom the instrument is produced, if it appears to him that the same is not duly stamped, to impound the same and sub section 2 of section 33 lays down the procedure for invoking the process of impounding. 7. In the judgment reported AVINASH KUMAR CHAUHAN v. VIJAY KRISHNA MISHRA ( (2009) 2 SCC 532 ), the provisions of sections 33, 35 and 36 were considered by the Honourable Supreme Court and held as follows:- "22. We have noticed heretobefore that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act. ... 25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes." 8. In the judgment reported in R.VE VENKATACHALA GOUNDER v. ARULMIGU VISWESARASWAMI & V.P. TEMPLE ( (2003) 8 SCC 752 ), the Honourable Supreme Court referred to the judgment reported in THE ROMAN CATHOLIC MISSION v. THE STATE OF MADRAS ( AIR 1966 SC 1457 ) and held as follows:- "19. Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. Order 13 Rule 4 CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced. 20. The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission Vs. The State of Madras AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior Court." 9. In CHILAKURI GANGULAPPA v. REVENUE DIVISIONAL OFFICER, MADANAPALLE ((2001) 2 MLJ 33(SC)), section 38 of the Stamp Act was incorporated and held as follows:- "In this context Sec.38 is to be looked into. It is clear from the first sub-section extracted above that the court has a power to admit the document in evidence if the party producing the same would pay the stamp duty together with a penalty amounting to ten times the deficiency of the stamp duty. When the court chooses to admit the document on compliance of such condition the court needs to forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory stamps. When the court chooses to admit the document on compliance of such condition the court needs to forward only a copy of the document to the Collector, together with the amount collected from the party for taking adjudicatory stamps. But if the party refuses to pay the amount aforesaid the court has no other option except to impound the document and forward the same to the Collector. On receipt of the document through either of the said avenues the Collector has to adjudicate on the question of the deficiency of the stamp duty. If the Collector is of the opinion that such instrument is chargeable with duty and is not duly stamped "he shall require the payment of the proper duty or the amount required to make up the same together with a penalty of an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof." 10. Therefore, having regard to the law laid down by the Honourable Supreme Court reported in (2003) 8 SCC 752 , the objection regarding the admissibility can be raised at any time and merely because a document was admitted in evidence, the other party is not deprived of his right to challenge the admissibility of the document at a later point of time stating that the document ought not to have been admitted in evidence having regard to the legal provisions and the document is inadmissible in evidence. 11. Further, under section 35 of the Stamp Act, the procedure has been laid down for collection of stamp duty penalty and a duty is also cast upon the court to collect the stamp duty penalty and procedure for collecting stamp duty has been laid down under section 38 of the Stamp Act and therefore, the court having directed the first defendant to pay stamp duty penalty on the document which was marked along with proof affidavit and also rejected the memo filed by the first respondent to recall that order stating that the order passed on 19.10.2010 was a judicial order which cannot be reviewed and also confirmed the same by rejecting the interlocutory application filed by the first defendant to the same effect, the court below should not have passed the impugned order reviewing its own order on the basis of the judgment reported in 2010-2-LW 644. Therefore, the order of the court below dated 6.6.2011 recalling its own order is set aside and the order dated 19.10.2010 is restored. In the result, the revision is allowed. No costs. The connected miscellaneous petition is closed.