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2020 DIGILAW 42 (CAL)

Umed Mal Dugar v. Anita Dalmia

2020-01-10

MANOJIT MANDAL

body2020
JUDGMENT Manojit Mandal, J. - This application is at the instance of the defendant/petitioner and is directed against the order dated February 13, 2019 passed by the learned Civil Judge (Senior Division), 1st Court at Alipore in connection with Title Suit No. 953 of 2011 (renumbered as Title Suit No. 21 of 2011) thereby rejecting the application dated June 4, 2013 filed by the defendant with a prayer for expunging the agreement for sale which was marked as Exhibit during evidence of PW 1 from the Exhibit list of the plaintiff. 2. The plaintiff/opposite party instituted the suit for specific performance of contract, permanent injunction and mandatory injunction against the petitioner. The defendant/petitioner appeared in this suit and contested the same by filing written statement. The flat being No. 202, measuring an area of 1630 sq.ft. in the 2nd floor of the premises No. 17/1C, Alipore, Kolkata 700027, is owned and possessed by the defendant/petitioner. The plaintiff/opposite party entered into an agreement with the defendant/petitioner on 14.05.2003 for purchase of the same with a total consideration of Rs. 35,70,000/-(Rupees Thirty Five Lakh Seventy Thousand) only and the defendant/petitioner after taking the consideration amount of Rs. 35,70,000/-(Rupees Thirty Five Lakh Seventy Thousand) only delivered possession of the said flat in favour of the plaintiff/opposite party. The plaintiff/opposite party requested the defendant/petitioner to execute and register the conveyance deed in his favour but the defendant/petitioner did not execute registered deed of sale in favour of the plaintiff/opposite party and deferred the registration one after another pretext and in this way six years had been lapsed since 2003 to 2009. On June 4, 2013, the defendant/petitioner filed two applications one was under Order 26 Rule 10 A read with Section 151 of the Code of Civil Procedure and another was an application for expunging the agreement for sale from the Exhibit list of the plaintiff and the plaintiff/opposite party duly contested the same by filing written objections in two applications. On November 22, 2013 the learned Civil Judge (Senior Division), 1st Court, Alipore passed an order rejecting the said two applications. Against the said order dated November 22, 2013, the defendant/petitioner preferred a Civil Revisional Application before this Court under Article 227 of the Constitution of India. On November 22, 2013 the learned Civil Judge (Senior Division), 1st Court, Alipore passed an order rejecting the said two applications. Against the said order dated November 22, 2013, the defendant/petitioner preferred a Civil Revisional Application before this Court under Article 227 of the Constitution of India. The said application was taken up for hearing on October 13, 2014 and after hearing the parties, this Court passed an order inter alia as follows:- "..............Accordingly, C.O. 71 of 2014 is disposed of by not interfering with the decision rendered in the order impugned as far as the application for appointment of a handwriting expert is concerned, but the order rejecting the defendant's application for not taking cognizance of the agreement in question is set aside and the trial Court is requested to consider the defendant's application under Section 151 of the Code afresh in accordance with law and render a reasoned decision thereon within four weeks from the date of receipt of a copy of this order." 3. Upon communication of the said order passed by this Court, the application under Section 151 of the Code of Civil Procedure for expunging the Exhibit-1 from the exhibit list filed by the plaintiff/opposite party has been re-opened. On February 13, 2019, the learned Civil Judge (Senior Division), 1st Court, Alipore rejected the said application under Section 151 of the Code of Civil Procedure. Being aggrieved, this application has been preferred. 4. The learned Advocate appearing for the defendant/petitioner urged that the findings and the order impugned passed by the learned trial Judge is illegal, invalid and failure of exercise of his jurisdiction. He further submitted that the learned trial Judge has failed to apply his judicial mind to decide and dispose of the petition filed by the petitioner/defendant for expunging the document marked as Exhibit-1 due to insufficient stamp. He further submitted that when the document insufficiently stamped admitted in evidence subject to objection, the duty of the Court to judicially determine objection before the suit is finally disposed of but in the present case, the document not duly stamped was admitted in evidence with objection and the learned trial Judge has failed to consider it without applying his judicial mind. In support of his arguments, he has relied upon an unreported decision passed by this Court in connection with C.O. No. 2104 of 2018. 5. In support of his arguments, he has relied upon an unreported decision passed by this Court in connection with C.O. No. 2104 of 2018. 5. On the other hand, the learned Lawyer appearing for the opposite party submitted that findings and order impugned passed by the learned trial Judge is legal, valid and it should not be set aside by this Court. 6. Having heard the learned Advocates appearing on behalf of the parties and on perusal of the materials on record, I am of the view that the learned Civil Judge (Senior Division), 1st Court, Alipore has reached at a right conclusion. 7. It is admitted fact that the agreement for sale produced by the PW 1 in the above suit has been marked as Exhibit-1. It is has been held in a case reported in ( Shyamal Kumar Roy v. Sushil Kumar Agarwal, (2007) 1 WbLR 247 SC) that when a document is once exhibited in course of the trial, there is no provision for expunging the same. 8. The Hon'ble Apex Court in a case reported in ( Javer Chand and others v. Pukhraj Surana, (1961) AIR SC 1655) observed as follows:- ".......document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has farreaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court 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. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. The record in this case discloses the fact that the hundis were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, s. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction." 9. In another case reported in ( V.E.A. Annamalai Chettair and another v. S.V.V.S. Veerappa Chettiar and others, (1956) AIR SC 12) Hon'ble Apex Court observed that:- ".............the document having been admitted in evidence such admission could not be called in question at any stage of the proceedings on the ground that it had not been duly stamped. The provisions of S.36, Stamp Act preclude the appellants from raising any objection against the admission of the document at this stage and the appellants are not entitled now to urge this objection before us." 10. Under these facts and circumstances and in view of the above discussion, I hold that the learned Court below committed no error of law in accepting the said agreement for sale as produced by PW 1. The grounds urged in this revisional application to the admissibility of the said agreement for sale in evidence can well be argued by the plaintiff/opposite party before the learned trial Court at the stage of oral argument of the suit and the learned Court below will decide the same. 11. The grounds urged in this revisional application to the admissibility of the said agreement for sale in evidence can well be argued by the plaintiff/opposite party before the learned trial Court at the stage of oral argument of the suit and the learned Court below will decide the same. 11. The unreported decision cited by the learned Advocate appearing for the petitioner passed by our High Court in connection with C.O. No. 2104 of 2014 is of no assistance to the defendant/petitioner as because the document was kept for identification in course of evidence and marked as Exhibit on an application by the defendant filed after the evidence was closed. 12. For the reasons as aforesaid, I do not find any infirmity in the decision of the learned Civil Judge (Senior Division), 1st Court, Alipore not to expunge the agreement for sale as Exhibit-1 from the records of the above suit. Therefore, the impugned order passed by the learned trial Court cannot be interfered with by this Court. 13. Accordingly, the revisional application, being C.O. 2509 of 2019 stands rejected. The interim order passed earlier also stands vacated. 14. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.