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2018 DIGILAW 87 (MP)

Naveen Garg v. Chintaman

2018-01-19

VIVEK AGARWAL

body2018
ORDER 1. Petitioner has filed this petition being aggrieved by the order dated 3.3.2017 passed by the Second Civil Judge Class 2 Gwalior, who vide impugned order has directed for confiscation of document and payment of the deficit stamp duty. 2. It is the contention of the petitioner that this decision on subsequent application as contained in Annexure P-7 could not have been entertained by the trial Court, inasmuch as the defendant had raised objection when plaintiff sought to exhibit document dated 1.9.2014 on 21.10.2016 and such objection was decided by the Court, therefore, such order deciding the objection against the defendant and in favour of the plaintiff could have been challenged before the superior Court but by virtue of filing an application as contained in Annexure P-7, the order which has already been taken in regard to admissibility of document has been reviewed. He has drawn attention of this Court to the provisions contained in section 36 of the Indian Stamp Act, 1899 so also the judgment of this Court in the case of Rakesh Kumar Sundrani and another v. Jagdish Prakash Angal and others, as reported in 2017(1) MPJR 37, wherein the Court has held that if a document is already marked as an exhibit by the trial Court during the course of examination-in-chief of the plaintiff in the absence of any objection thereto, in the light of provisions under section 36 of the Indian Stamp Act, admissibility of the document can not be questioned at a later stage in view of the judgment rendered in the case of Javer Chand v. Pukhraj Surana, as reported in AIR 1961 SC 1655 . 3. On the other hand, learned counsel for the respondent submits that in view of the judgment rendered by the Full Bench Hon'ble Supreme Court in the case of Ram Rattan (Dead) by LRs v. Bajrang Lal and others, as reported in AIR 1978 SC 1393 , such document had not precluded the defendant from raising an objection and the trial Court was obliged to decide such objection. He has placed reliance on para 6 of the judgment in which the facts were that a document was tendered in evidence by the plaintiff while in witness box, objection was raised by the defendant that the document was inadmissible in evidence as it was not duly stamped and for want of registration. He has placed reliance on para 6 of the judgment in which the facts were that a document was tendered in evidence by the plaintiff while in witness box, objection was raised by the defendant that the document was inadmissible in evidence as it was not duly stamped and for want of registration. Hon'ble Supreme Court held that it was obligatory upon the trial Judge to apply his mind to the objection raised and decide the objection in accordance with law. In the case of Ram Rattan (supra), the fact was that a trial Judge had not decided the objection and had postponed the decision and to avoid interruption in the process of recording evidence had decided to mark the document in evidence subject to objection. In this backdrop, Hon'ble Supreme Court held that without deciding the objection, the tendency to mark document is fatal and under such circumstances, such marking of the document was held to be inadmissible. Learned counsel for the respondents also submits that section 36 of the Indian Stamp Act would come into play only when such admission was not called in question. 4. In the opinion of this Court, the judgment in the case of Ram Rattan (supra), is distinguishable under the facts and circumstances of the present case, inasmuch as the trial Court on 21.10.2016 had not postponed the issue of deciding the admissibility of the document but had decided the same and had rejected the objection raised by the defendant. 4. In the opinion of this Court, the judgment in the case of Ram Rattan (supra), is distinguishable under the facts and circumstances of the present case, inasmuch as the trial Court on 21.10.2016 had not postponed the issue of deciding the admissibility of the document but had decided the same and had rejected the objection raised by the defendant. Once the objection was rejected and the issue of admissibility was decided, then it was open to the defendant to have challenged that order but second application on the same aspect was not maintainable in view of the provisions contained in section 36 of the Indian Stamp Act, as has been held by the Hon'ble Supreme Court also in para 6 itself of the judgment of Ram Rattan (supra), wherein it has been categorically held as under : "If after applying mind to the rival contentions the trial Court admits a document in evidence, section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped." In view of such judgment, it can not be said that section 36 of the Indian Stamp Act will come into play only when a document is admitted in evidence without there being any objection by the other party. The ratio of the judgment of Ram Rattan (supra), is that once the Magistrate has applied his mind and has judicially decided whether a document is to be admitted or not and once the exhibit is marked on such a document, then section 36 of the Indian Stamp Act will come into play. Therefore, in the opinion of this Court, trial Court has erred in passing the impugned order overlooking the provisions of the Indian Stamp Act and the law on the issue and thus the impugned order deserves to be set aside and is set aside. Petition is disposed of accordingly.