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2022 DIGILAW 1246 (AP)

P. N. Varalakshmi Died v. K. Chandra

2022-11-09

B.S.BHANUMATHI

body2022
ORDER : This revision, under Article 227 of the Constitution of India, is filed challenging the order, dated 27.02.2020, dismissing I.A.No.693 of 2017 in O.S.No.322 of 2013 on the file of the Court of Additional Senior Civil Judge, Chittoor, filed under Section 151 CPC to impound the suit agreement of sale as it is liable for stamp duty and penalty or else to eschew the document from evidence. 2. Heard Sri O. Uday Kumar, learned counsel appearing for the revision petitioners/defendants 1 to 3 and Sri V. Nitesh, learned 1st 2nd counsel for the respondent/plaintiff. The respondent/ defendant No.4 is shown to be not a necessary party to this revision, as she was set ex-parte before the trial Court. 3. The facts, in brief, are as follows: The plaintiff filed the suit seeking specific performance of the suit agreement of sale. The defendants resisted the suit on the ground that the suit agreement of sale is created in order to knock away the property of the plaintiff, and therefore, the suit agreement of sale is liable to be impounded as it is not admissible in evidence. However, the plaintiff marked the said document as one of the exhibits. As per law, the document is liable to be impounded under Section 47-A of the Stamp Act as there is a reference regarding possession of the property in the said document. It is therefore just and necessary to impound the suit agreement of sale as it is insufficiently stamped, and in case, the plaintiff is unable to impound the suit agreement of sale, the same may be eschewed as an exhibit. (b) The plaintiff filed counter denying the petition averments. It is further contended in the counter that since long time, the plaintiff is in possession of the schedule property and therefore, Section 47A of the Stamp Act is not attracted. The document is admissible in evidence and the same does not require impounding. There are no merits and bona fides in the petition and the same is liable to be dismissed. 4. On merits, the trial Court dismissed the petition holding that the document once marked cannot be de-exhibited. 5. The aggrieved defendants preferred this revision contending that when an objection is raised for marking the document, the court has to decide the objection. 4. On merits, the trial Court dismissed the petition holding that the document once marked cannot be de-exhibited. 5. The aggrieved defendants preferred this revision contending that when an objection is raised for marking the document, the court has to decide the objection. As per Section 47-A of the Indian Stamp Act, 1899, the document, agreement of sale evidencing delivery of possession is liable for impounding and without impounding, it cannot be marked. 6. The main grievance of the revision petitioners is that in spite of an objection recorded in writing that the document is inadmissible in evidence for want of sufficient stamp duty, as required under Article 47-A of the Schedule 1A of the Indian Stamp Act, 1899 (‘the Act’), since the tenant who is in possession of the property allegedly entered into an agreement of sale, the trial Court overlooking the same, marked the document, and therefore, the trial Court failed to exercise its jurisdiction cast on it under Sections 33 & 35 of the Act and thus, merely because the document is given a number, the same is not a bar to demark the document and that Section 36 of the Act has application only when the document is received in evidence and not just when the document is merely marked. 7. Learned counsel for the revision petitioners placed reliance on the decision of the High Court of Judicature at Hyderabad (For the States of Telangana and Andhra Pradesh) in A.P. Laly v. Gurram Rama Rao, 2017 (5) ALT 753 , wherein the question decided is whether it is open to a party who raised the objection or not with regard to admissibility of document to file a petition for de-exhibiting the said document at a later stage either in the same proceeding or at an appellate stage. It is held that court has right to de-exhibit a document, at paragraph No.30 as follows : “30. Thus, in the absence of consideration of application of Rule 3 of Order 13 to the cases of improperly admitted documents, the arguments advanced on the basis of such decisions is of no avail. I am of the opinion that the decisions of this Court in Syed Yousuf Ali (supra) and Srinivasa Builders (supra) do not require any elaboration or clarification. I am of the opinion that the decisions of this Court in Syed Yousuf Ali (supra) and Srinivasa Builders (supra) do not require any elaboration or clarification. It is also relevant to notice that a learned single Judge of this Court, who rendered the decision in Syed Yousuf Ali's case (supra), rendered another decision in S. Mohan Krishna v. V. Varalakshmamma [ 2017 (5) ALT 264 ] : 2017 (5) ALD 228 to the same effect. The Court has got right to de-exhibit a document when its attention was drawn as to the inadmissibility of the document, as it has got duty to decide the admissibility of a document and eschew irrelevant and inadmissible evidence. The Code of Civil Procedure deals with the procedure in dealing with the suits, whereas the provisions of the Indian Stamp Act deal with the provisions for collection of proper stamp duty on the documents. When a document which was not properly stamped was admitted in evidence and when the Court's attention was drawn, the objection of the party under Section 36 of the Act pales into insignificance and the duty of the Court comes to the forefront to decide with regard to admissibility of such a document. It is for the Court to decide whether a particular document is admissible or not. If it is inadmissible it can de-exhibit such a document. It is the decision of the Court, but not that of the objector. The role of the objector is only to bring it to the notice of the Court. Even assuming that a Court decides to admit a document in evidence, there is nothing in the Code of Civil Procedure prohibiting the Court from recalling such an order.” 8. On the other hand, learned counsel for the respondent/ plaintiff vehemently contended that when once the document is received in evidence, the same cannot be challenged subsequently on the ground of want of sufficient stamp duty in the light of Section 36 of the Act and placed reliance on the decision in Dokka Joganna v. Upadrasta Chayadevi, 1997 (6) ALD 224 , wherein it was held at paragraph No.4 as follows : '4. There is absolutely no dispute that proviso to Section 35 of the Indian Stamp Act, 1899 totally prohibits admission of an unstamped or insufficiently stamped promissory note in evidence even on payment of requisite duty together with penalty thereon. There is absolutely no dispute that proviso to Section 35 of the Indian Stamp Act, 1899 totally prohibits admission of an unstamped or insufficiently stamped promissory note in evidence even on payment of requisite duty together with penalty thereon. Section 36 of the said Act provides that: "36. Admission of instruments, 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." Dealing with the scope and ambit of this section, it has been held in a catena of decisions that once a document is admitted in evidence rightly or wrongly, with or without objection, it is not permissible for the Court including appellate or revisional Court to reject the same on the ground that it has not been duly stamped. (See V.E.A. Annamalai Chettiar and Anr. v. S.V.V.S. Veerappa Chettiar and Ors., [ AIR 1956 SC 12 ]; Nalluru Basavaiah Naidu v. Takelia Venkatesivarlu, 1968 An.W.R. 211 and P. Rainana Reddi v. K. Rukminamma, 1956 An.W.R. 490 : 1956 ALT 22 : [ AIR 1957 A.P. 1022 ]. In the light of the above settled proposition of law, the admissibility of the suit documents cannot be left open to be decided at a later stage, i.e., while rendering judgment taking into account other oral and documentary evidence that may be adduced by the parties to the suit. Thus, it has become imperative to decide their admissibility in evidence at this stage itself i.e., before they are marked and proved on behalf of the respondent/ plaintiff.” (ii) He also placed reliance on the decision of this High Court in R. Venkataramana Reddy v. R. Radha Krishna Reddy, [C.R.P. No. 3542 of 2018, dt.27.11.2019], wherein at paragraph Nos.28, 29 & 30, it was held as follows : “28. Effect of an instrument or a document admitted in evidence once taken as a part of material record should also be considered in this context. If by the device under Order 13 Rule 3 C.P.C., if it is sought to be excluded from consideration, it amounts to prejudging the matters before conclusion of the trial. Law does not permit eschewing or rejection of evidence at the threshold or in the course of trial. If by the device under Order 13 Rule 3 C.P.C., if it is sought to be excluded from consideration, it amounts to prejudging the matters before conclusion of the trial. Law does not permit eschewing or rejection of evidence at the threshold or in the course of trial. A fair trial requires consideration of evidence, being let in by both the parties in proper perspective. 29. Therefore, for the above reasons, I respectfully differ from views expressed in A.P. Laly v Gurram Rama Rao [ 2017 (5) ALT 753 ] : 2017(6) ALD 300 (supra) by one of the learned Judges of then composite High Court of A.P at Hyderabad. 30. The other two judgments relied for the petitioners, Smt. Aruna Sagar and others v. M/s. Shrushti Infrastructure Corporation and others [ 2016 (5) ALT 133 ] and Boggavarapu Narasimhulu v. Sriram Ramanaiah and others [ 2014 (1) ALT 577 ] relate to different factual context. They considered the circumstances when objections were raised before the instrument was introduced in evidence.” 9. As can be seen from the record, there is no dispute as to the fact that the revision petitioners have raised an objection in writing that the document in question is not admissible in evidence for want of stamp duty. Without looking into the objection and either by rejecting the contention or postponing the decision therein, the document has been marked as an exhibit. 10. Section 33 of the Act casts a duty on every person having by law or consent of parties authority to receive in evidence, and every person-in-charge of a public office, except an officer of a 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. Further, Section 35 of the Act prohibits receipt of any document in evidence, if it is not duly stamped. However, Section 36 makes Section 35 as almost like an exception to Section 35 by saying that 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. 11. However, Section 36 makes Section 35 as almost like an exception to Section 35 by saying that 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. 11. On a reading of these provisions together, it cannot be said that without discharging the initial duty under Section 33 of the Act, the act of Court cannot be justified in taking recourse to shelter under Section 33 of the Act. The revisional Court has authority to examine whether the act of a Court subordinate to it has exercised its jurisdiction and if the jurisdiction vested in the Court is not exercised, i.e., failure to exercise jurisdiction or even if exercised, but erroneously, the same can be examined in the revision. 12. It is obvious from the evidence on record in the present case that the trial Court has failed to exercise its jurisdiction and more particularly, the duty cast on it, and therefore, merely because the document is assigned an exhibit number, it cannot be treated as an admission of the same in evidence, as required under Section 36 of the Act. If at all, the objection raised by the revision petitioners is considered and rejected or postponed the decision thereon, the situation would have been different. The decision in Dokka Joganna v. Upadrasta Chayadevi (2nd supra) was referred in the case of A.P. Laly (1 supra). The decision in A.P. Laly (supra) is deferred in R. Venkata Ramana Reddy case (3rd supra). However, the decisions referred in para 30 are not deferred. The case on hand fits within parameters of paragraph No.30. As such, the decisions relied on by the learned counsel for the 1st respondent would not come in aid to oppose the revision petition. 13. In the result, the Civil Revision Petition is allowed setting aside the order, dated 27.02.2020, passed in I.A.No.693 of 2017 in O.S.No.322 of 2013, and the trial Court is directed to decide the admissibility of the document in evidence in terms of stamp duty required as per law and then proceed further in the trial. There shall be no order as to costs. Miscellaneous petitions pending, if any, shall stand closed.