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2014 DIGILAW 71 (AP)

Sheikh Qutubuddin v. Goli Vishwanatham

2014-01-22

P.NAVEEN RAO

body2014
Judgment : 1. Revision petitioners are the defendant Nos.1 and 2 and respondents are the plaintiffs in O.S.No.10 of 2005 on the file of Senior Civil Judge at Nirmal. Petitioners assailed the order of the Senior Civil Judge, Nirmal dated 24.10.2013 admitting document marked as Ex.A26, which is an agreement dated 14.01.2003. 2. Suit is filed seeking declaration that the sale deeds dated 27.06.2001 and 24.07.2004 are null and void and that the plaintiffs are the owners of house bearing G.P.No.7-71 (old), Padmavathi Nagar Colony, Khanapur Village and Mandal, Adilabad District; for mandatory injunction to remove illegal and unlawful constructions made by the defendants; direction to defendants to vacate and hand over the vacant and peaceful possession of the land admeasuring 144.49 square yards in respect of the above premises; and direction to the defendants to pay sum of Rs.5,000/- per month for unlawful and illegal occupation. 3. In support of their relief, one of the documents relied upon by plaintiffs is document dated 14.01.2003, which is an agreement between Goli Viswanatham and Dr. MD. Zaheer Ahmed and others. Plaintiffs intend to mark this document as Ex.A26 through one person, by name, Noor Jahan , who stood as prosecution witness no.9. P.W.9 filed an affidavit before evidence is recorded and during the course of the recording of evidence, P.W.9 affirmed the contents of the affidavit already filed and in view of the same, it is treated as chief-examination. Agreement dated 14.01.2003 is marked as Ex.A26 through P.w.9. Along with the above document, three other documents are marked as Exs.P27 to P29. 4. Petitioners objected for marking of the said documents. Taking note of the objection, Senior Civil Judge marked the documents as Exs.A26 to A29 recording that such marking is subject to objection raised by the counsel for the defendants. This order is under challenge in this revision petition. 5. Heard learned counsel for petitioners Sri C.Naresh Reddy and learned counsel for respondents Sri P.Raghavendra Reddy. 6. Extensive submissions are made by the counsels on either side on the merits of the document marked as Ex.A26. In addition to the submissions on merits, the principal contention urged by the learned counsel for the petitioners is, the trial court erred in marking the document dated 14.01.2003 as Ex.A26 without deciding the objection raised by petitioners/defendants. 6. Extensive submissions are made by the counsels on either side on the merits of the document marked as Ex.A26. In addition to the submissions on merits, the principal contention urged by the learned counsel for the petitioners is, the trial court erred in marking the document dated 14.01.2003 as Ex.A26 without deciding the objection raised by petitioners/defendants. The principal objection on marking the said document as an exhibit, by the petitioners, is that the document is insufficiently stamped, it was not registered and is not admissible in evidence. 7. In support of his contention, learned counsel placed reliance on 1) Nori Srirama Sastri Vs. Nori Lakshmidevamma and others, ( AIR 1957 AP 60 )2) Bipin Shantilal Panchal Vs. State of Gujarat and another,( AIR 2001 SC 1158 ) and 3) Sanjeeva Reddi Vs. Johanputra Reddi. ( AIR 1972 AP 373 ). 8. Learned counsel for the respondents submits that when the document was marked, no objection was raised by the defendants and since no objections were raised and document is already marked, the present revision petition is not maintainable. Learned counsel further contends that right or wrong once a document is marked, no court has jurisdiction to nullify the marking of the document and, therefore, present revision petition is not maintainable. Learned counsel also made extensive submissions justifying the correctness of the document in issue. 9. In support of his contention, learned counsel for the respondents placed reliance on 1) Dokka Joganna Vs. Upadrasta Chayadevi, ( 1997 (5) ALT 628 )2) Isra Fatima Vs. Bismillah Begum and another,( 2002 (5) ALD 660 )3) Shyamal Kumar Roy Vs. Sushil Kumar Agarwal(2007(1) ALD 28 (SC)) and 4) Thiruvengadam Pillai Vs. Navaneethammal and another.( (2008) 4 SCC 530 ) 10. The point that arises for determination in this petition is whether the trial Court erred in marking the document described as agreement dated 14.01.2003 as Ex.A26 without first considering the objection raised by the defendants on marking of such document. 11. Navaneethammal and another.( (2008) 4 SCC 530 ) 10. The point that arises for determination in this petition is whether the trial Court erred in marking the document described as agreement dated 14.01.2003 as Ex.A26 without first considering the objection raised by the defendants on marking of such document. 11. Though extensive submissions are made on the validity of the document in issue and its relevance to the relief claimed in the suit, since suit is pending adjudication by the trial Court, no opinion is expressed and the point for consideration in this petition is confined to the order passed by the trial Court on 24.10.2013 with reference to marking of a document even when an objection is raised without considering and deciding the merit of such objection. 12. The principle deducible from the decisions relied upon by the counsel for respondents is, if no objection is raised when a document is admitted, no Court including the Appellate Court has jurisdiction to reopen the issue of admission of such document. Reliance was placed on Section 36 of the Indian Stamp Act in support of such proposition. In Shyamal Kumar Roy, Supreme Court considered the contention to reopen issue of admissibility of a document where initially no such objection was raised. Supreme court held that having consented to document being marked as an exhibit, party lost its right to reopen the issue. Supreme Court distinguished cases where an objection was raised at the stage of marking of a document, but the concerned court noted “objected, allowed subject to objection”. In such cases, it was held that Section 36 is not attracted. Supreme Court held, “objection as regards admissibility of a document, thus, specifically required to be taken that it was not duly stamped. On such objection only the question is required to be determined judicially”. It is further held as under: “What was necessary was that the document should be marked in presence of the parties and they had an opportunity to object to the marking of the document. The question of judicial determination of the matter would arise provided an objection is taken what document is tendered in evidence and before it is marked as an exhibit in the case. ……… ” 13. The above decisions do not come to the aid of the respondents. The question of judicial determination of the matter would arise provided an objection is taken what document is tendered in evidence and before it is marked as an exhibit in the case. ……… ” 13. The above decisions do not come to the aid of the respondents. As evident from the reading of order under challenge, objection was raised by the petitioners and, therefore, it cannot be said that petitioners have consented for admission of document. 14. The decision relied by the learned counsel for the respondents in Thiruvengadam Pillai is not relevant since the validity of the document is not considered on merits. Similarly, decision relied by the counsel for the petitioner in the case of Sanjeeva Reddi is also not relevant as issue concerning the validity of the document is not considered. 15. In Nori Srirama Sastri, this Court held that if objection is raised regarding a document, which was sought to be marked, “it was the duty of the Subordinate Judge to have decided the question as to the admissibility of the documents objected to by the petitioner. He ought not to have marked them tentatively and reserved the question of the admissibility for arguments at the final stage”. Learned Judge followed the earlier decision of Madras High court in the case of Devasikhamani Gounder Vs. Andamuthu Gounder. ((1995) 1 Mad.L.J. 457) 16. On an identical issue, in Bipin Shantilal Panchal, Supreme court held as under: “When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided “at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed). (emphasis applied).” 17. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed). (emphasis applied).” 17. In the above decision, Supreme Court makes a distinction and holds that if an objection regarding maintainability of a document is raised on the ground that there was a deficiency of stamp duty, the Court has to decide the objection before proceeding further. 18. In Ram Rattan (dead) by L.Rs. Vs. Bajrang Lal and others, ((1978) 3 Supreme Court Cases 236) Supreme Court held as under: “…. The court, and of necessity it would be trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 (see Javer Chand v. Pukhraj Surana, reported in AIR 1961 SC 1655 ).” 19. In the instant case, one of the objections raised by the petitioners was that the document dated 14.01.2003 is insufficiently stamped and, therefore, is not admissible in evidence. There is no discussion on the objections raised and merits of such objections. No reasons are assigned. Duty is cast upon the trial Court to consider the said objection and pass a judicial order before proceeding further in the matter. More particularly, when the trial Court noticed that an objection was raised, it could not have postponed the issue of deciding the validity of a document and ought to have decided then and there the correctness of the objections before proceeding further. 20. For the reasons aforesaid, the order impugned herein is set aside and the Senior Civil Judge at Nirmal is directed to consider the objections raised by the petitioners as with reference to the marking of the agreement dated 14.01.2013 as an exhibit and take a decision thereon before proceeding further. 21. Accordingly, the civil revision petition is allowed. No costs. For the reasons aforesaid, the order impugned herein is set aside and the Senior Civil Judge at Nirmal is directed to consider the objections raised by the petitioners as with reference to the marking of the agreement dated 14.01.2013 as an exhibit and take a decision thereon before proceeding further. 21. Accordingly, the civil revision petition is allowed. No costs. Miscellaneous petitions if any pending in this civil revision petition shall stand closed. Miscellaneous petitions if any pending in this civil revision petition shall stand closed.