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2022 DIGILAW 897 (AP)

Yerra Narasimha Rao v. Yerra Koteswara Rao

2022-09-15

B.S.BHANUMATHI

body2022
ORDER : C.R.P.No.496 of 2020 is filed under Article 227 of the Constitution of India against the order dated 29.01.2020 in I.A.No.598 of 2019 in O.S.No.24 of 2018 on the file of the Court of Principal Junior Civil Judge, Ramachandrapuram, by which the petition filed under Section 33 r/w Section 38 of the Indian Stamp Act and Section 151 CPC to send the unregistered agreement of sale dated 04.04.1988 to the Stamp Collector i.e. District Registrar, East Godavari, Kakinada for the purpose of impounding or levying proper stamp duty, if needed, was dismissed. 2. C.R.P.No.497 of 2020 is filed against the order dated 29.01.2020 in I.A.No.597 of 2019 in O.S.No.24 of 2018 on the file of the Court of Principal Junior Civil Judge, Ramachandrapuram, by which the petition filed under Order VIII Rule 1 A (3) & Section 151 CPC to receive the documents 1) unregistered agreement of sale dated 04.04.1988 executed by Yandamuri Bhadramma and 2) original ownership certificate issued by MRO, Ramachandrapuram in the name of Yarra Narasimha Rao, on behalf of the petitioner/1st defendant, was dismissed. 3. Though the reliefs claimed in both petitions are different, since they are connected in the sense that the relief claimed in I.A.No.598 of 2017 is subject to the relief claimed in I.A.No.597 of 2019, a common order is being passed. 4. In I.A.No.597 of 2019, the petitioner/first defendant contended that since he filed written statement opposing the suit for partition filed by the first respondent/plaintiff on the ground that the suit schedule property consists of the land purchased by their father and also the land of Ac.0.02 cents in respect of which patta was granted in his favour and also some extent of property which he purchased under an agreement of sale dated 04.04.1988, it is essential to file these two material documents in his evidence to prove his defence, but he could not file them earlier in his evidence when he was examined. These two documents were filed by his son, who was examined as DW.5 in his evidence along with his chief examination affidavit. 5. In I.A.No.598 of 2019 the petitioner/1st defendant contended that since the said unregistered agreement of sale cannot be received in evidence for want of necessary stamp duty, unless the document is impounded, he cannot establish his defence. 6. 5. In I.A.No.598 of 2019 the petitioner/1st defendant contended that since the said unregistered agreement of sale cannot be received in evidence for want of necessary stamp duty, unless the document is impounded, he cannot establish his defence. 6. Both petitions were opposed by the first respondent/plaintiff, but no counter was filed in I.A.No.597 of 2019. The first respondent/plaintiff filed counter in I.A.No.598 of 2019 stating that the petition was filed at the fag end of the matter, after completion of the trial with a view to procrastinate the suit and that even if the said unregistered agreement of sale is impounded, it will not create any right or title whatsoever to the petitioner and thus no purpose would be served by impounding the document. 7. After hearing both parties, the trial Court dismissed both petitions. Insofar as the petition to grant leave to file documents is concerned, the trial Court observed that the petitioner did not state in his written statement that the agreement of sale or the ownership certificate were in the custody of his son, but on the other hand he stated in his evidence that they are with the plaintiff and suddenly he changed his version and, therefore, the reasons stated by him for the delay in filing the documents are not genuine and real. Insofar as the petition to send the agreement of sale for impounding is concerned, the trial Court observed that no purpose would be served by sending the document as the case of the petitioner does not fall within the provisions of Section 38 of Indian Stamps and Registration Act, 1908 as the suit is filed for partition and that if the petitioner, had any interest to send the document for impounding, he ought to have filed the petition at the earliest possible time, but he failed to do so for the reasons best known to him. 8. 8. Learned counsel for the petitioner submitted that since the existence of the documents has been pleaded in the written statement, merely because their possession is not noted in the written statement, the relief cannot be declined and that they are very much essential to decide the main issue involved in the suit as the plaintiff asserts title of their father over the entire extent of the suit schedule property, whereas this defendant sets up ownership and possession over the part of the suit schedule property, both under the agreement of sale and patta. 9. The learned counsel further submits that since the evidence of the defendants is not yet closed, the petitioner cannot be prevented from placing the material evidence on technical grounds. However, he could not explain as to why the petitioner stated in his evidence as though these documents are in the hands of respondent/plaintiff that the documents are with his son. The fact remains that the petitioner has not filed these documents along with the written statement or in his evidence. The reason for not filing these documents is merely that they remained with his son. As can be seen from the pleadings, these are the documents which were already stated to be in existence and they are not introduced for the first time. It cannot be said that they are introduced for procrastinating the trial. However, it appears that there are some latches on the petitioner in producing them at appropriate stage. Since his evidence is still not closed and he proposes to lead the evidence of his son, it cannot be said that filing of these documents would protract the trial as no objection is raised for filing these documents through D.W.5. Moreover when strict observance to the procedural aspects is causing prejudice to the substantial rights of the parties in placing their case for decision on merits, the balance can be tilted towards getting better evidence on record for adjudication of the matter on merits, rather than scuttle the hopes of the parties to lead the best evidence possible. Merely because the petitioner failed to mention about the possession of these documents in his written statement, it cannot be a ground to refuse. Merely because the petitioner failed to mention about the possession of these documents in his written statement, it cannot be a ground to refuse. As is already noted, the stand taken by the petitioner about the possession of the documents with the plaintiff, may be wrong, in view of the present stand taken that they are with his son. Just for that reason, Court cannot allow injustice being done by shutting the evidence. For such conduct of the petitioner appropriate terms can be imposed by directing the petitioner to pay exemplary costs to the respondent/plaintiff. As such, this petition can be allowed. 10. Insofar as impounding the agreement of sale is concerned, it is settled law that a document which requires registration and stamp duty, if not registered and not duly stamped, they cannot be received in evidence. Section 17 of the Registration Act specifies the documents which require the registration. Apart from that, certain other statutes also make registration of a document mandatory. Since in the present case, the document is covered by the provision of Section 17(1) of the Registration Act, it is not necessary to refer the other legislations. Admittedly the agreement of sale is not registered and not duly stamped. The effect of non-registration of a document is stated in Section 49 of the Registration Act. It prohibits receipt of such document in evidence. However, it provided exceptions to the general rule. One such exception is that such a document can be received for collateral purpose. The said provision also permits receipt of unregistered agreement of sale in evidence for specific purpose. But trial Court went wrong in not considering the explanation of Section 49 regarding collateral purpose i.e. for proving the possession of the first defendant by virtue of the agreement of sale and appears to have been under the impression that it cannot be received in evidence, as the suit is not for specific performance, but is for partition. Therefore, it is held that no purpose would be served by impounding the document and it is not admissible under Section 49 of the Registration Act. In a case of suit filed for partition also, even for collateral purpose of showing possession of the property, when an unregistered document is sought to be filed in evidence it must necessarily be stamped as required under law. In a case of suit filed for partition also, even for collateral purpose of showing possession of the property, when an unregistered document is sought to be filed in evidence it must necessarily be stamped as required under law. If not, unless the necessary stamp duty is paid with the penalty as required under the provisions in the Stamp Act, the same cannot be received in evidence even for collateral purpose. Therefore, it is necessary to get the agreement of sale impounded through process of law. It is exactly for the same purpose, this petition is filed. The petitioner could have done the same at the earliest point of time, but failed to do so. Since, still the suit is under the process of trial, though it would cause a little more inconvenience to the other parties and delay the trial a little more further, in the interest of justice to dispose of the suit on merits, it is jut and necessary to permit the petitioner to get the document impounded, however, subject to certain terms by imposing costs on the petitioner. 11. In the result, both the revision petitions are allowed and the orders dated 29.01.2020 in I.A.No.597 of 2019 and I.A.No.598 of 2019 in O.S.No.24 of 2018 on the file of the Court of Principal Junior Civil Judge, Ramachandrapuram, are set aside and the petitions are allowed, subject to the condition that the petitioner shall pay costs of Rs.3000/-(rupees three thousand only) in each petition to the first respondent/plaintiff on or before 11.10.2022, failing which the petitions shall stand dismissed. Miscellaneous Petitions, if any pending, in this Civil Revision petition, shall stand closed.