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2024 DIGILAW 1058 (CAL)

Debabrata Kumar Mitra v. Rajat Ghosh

2024-05-17

PRASENJIT BISWAS

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JUDGMENT : Prasenjit Biswas, J. 1. Feeling aggrieved and dissatisfied with the impugned order no. 15 dated 28.03.2021 passed by the Learned Civil Judge (Senior Division) at Alipore in connection with title suit no. 91 of 1999 this application is filed by the petitioner under Article 227 of the Constitution of India 2. The moot question involved in this case that once any document is admitted in evidence and marked as exhibit subsequently, such order whether could be recalled by the Court for impounding the instrument in absence of the payment of proper stamp duty. 3. Impugned order no. 15 dated 28.03.2001 passed by the Trial Court is as follows:- “P.W. 1 is further examined in chief. Plaintiff has filed impounding fees of Rs. 99/-in terms of the report of the Sdr. dated 28.03.2001. Document being the statement of account marked Ext. 7 & 7/a and the letter dated 26.08.1997 as ext. 8. It appears in course of hearing that the agreement assigned to the plaintiff dated 18.11.1995 is on a stamp paper of Rs. 10/-which is required to be impounding as well, because as per the amended provision of law, applicable to West Bengal, agreement for sale has to be on the stamp paper which is required in respect of conveyance. Accordingly, the agreement dated 18.11.1995 and memo of agreement dated 13.08.1997 be impounded. Nevertheless, the said agreement has been marked exhibit through inadvertence.” 4. Despite service affected upon the opposite parties none has appeared to contest this case. 5. Petitioner being the plaintiff filed a suit for decree for specific performance of agreement dated 18th day of November, 1995 directing the defendants and each of them to execute a registered conveyance in his favour for sale of flat in question. The said suit was filed by this plaintiff/petitioner against the defendants before the Trial Court which was registered as Title Suit No. 91 of 1999. It is further submitted by the learned Counsel that the said suit came up for hearing before the learned Trial Court on diverse occasions and on 16.03.2001 the present petitioner was examined as P.W.1 and at the time of examination in chief the document was produced before the learned Trial Court and the said document was marked as exhibit in that suit. Thereafter, the said matter came up for hearing before the Trial Court on 28th March, 2001 and the learned Trial Court passed the impugned order with observation that the agreement dated 18.11.1995 and memo of agreement dated 13.08.1997 be impounded. 6. Learned Counsel at the time of hearing reiterated the provision of Section 36 of the Indian Stamp Act, 1899 and as per his submissions once a document is admitted in evidence and such admission shall not except as provided in Section 61 of the said Act be called in question at any stage of the suit on the ground that it has not been properly stamped. It is further submitted by the learned Counsel that the learned Trial Court in exercise of jurisdiction acted illegally and with material irregularities in impounding the document. So, as per submission of the learned Counsel that the learned Trial Court ought to have acted on the basis of Section 36 of the Indian Stamp Act. Learned Counsel lastly submitted that the Indian Stamp Act (West Bengal Amendment) Act, 1990 came into force on 31st January, 1994 and as such the West Bengal Amendment Act, 1990 has no manner of application in this regard. 7. Reliance has been placed by the learned Counsel appearing on behalf of the petitioner upon the decisions rendered by Hon’ble Apex Court in Javer Chand And Others Vs. Pukhraj Surana reported in AIR 1961 SC 1655 and in case of Shyamal Kumar Roy Vs. Sushil Kumar Agarwal reported in (2006) 11 Supreme Court Cases 331. 8. Section 36 of the Stamp Act provides: "36, Admission of instrument 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." 9. This Section is categorical in terms that when a document has once been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceeding on the ground that the instrument had not been duly stamped. The only exception to that Section is Section 61 of the Indian Stamp Act which is not material to the present controversy. The only exception to that Section is Section 61 of the Indian Stamp Act which is not material to the present controversy. On basis of the provision of Section 36 of the Indian Stamp Act that if a challenge to the admission of an unstamped/insufficiently stamp agreement is not raised at the time of exhibiting the document then the same cannot be challenged and the said order of exhibiting the document cannot be called at a later stage of the proceeding. It appears from the impugned order that the document was marked as exhibit at the time of examination of P.W.1 without any objection from any corner and the same was admitted in evidence as provided under Section 36 of the Act. The admissibility of the document could not be called in question at subsequent stage of the suit or the order cannot be recalled on the ground that it has not been duly stamped. 10. The law as to when the bar of Section 36, Stamp Act, is attracted has new been almost settled. In Javer Chand and Others Vs. Pukhraj Surana reported in AIR 1961 SC 1655 , their Lordships of the Supreme Court, were pleased to observe : "Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, 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. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 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." 11. 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." 11. In Javer Chand And Others (supra) Hon’ble Apex Court observed that where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped it has to be decided then and there when the document is tendered in evidence and once the Court, rightly or wrongly decides the admissibility of document in evidence so far as the parties are concerned, the matter is closed. 12. In Ram Rattan (Dead) by Lrs. Vs. Bajrang Lal and Others, reported in (1978) 3 SCC 236 at page 239 their Lordships of the Supreme Court reiterated it as follows : "6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objects in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the court to decide the objection. 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. 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. 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) [ AIR 1961 SC 1655 ]. The endorsement made by the learned trial Judge that “Objected, allowed subject to objection”, clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.” 13. In Shyamal Kumar Roy v. Sushil Kumar Agarwal, (2006) 11 SCC 331 Hon’ble Apex Court observed at paragraph 16 and 17 interalia that – “The said decision, therefore, is an authority for the proposition that Section 36 would operate even if a document has been improperly admitted in evidence. It is of little or no consequence as to whether a document has been admitted in evidence on determination of a question as regards admissibility thereof or upon dispensation of formal proof there for. If a party to the lis intends that an instrument produced by the other party being insufficiently stamped should not be admitted in evidence, he must raise an objection thereto at the appropriate stage. He may not do so only at his peril. Objection as regards admissibility of a document, thus, specifically is required to be taken that it was not duly stamped. On such objection only the question is required to be determined judicially”. 14. He may not do so only at his peril. Objection as regards admissibility of a document, thus, specifically is required to be taken that it was not duly stamped. On such objection only the question is required to be determined judicially”. 14. When, instead of deciding the objection instantly, the decision is postponed and the document is marked subject to objection, it will be obligatory upon the Court to decide the objection before the suit is finally disposed of and Section 36 will be applicable after the decision. When the 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. The crucial stage is the stage of marking the document as an exhibit in the case and in that stage if the court decides to admit the document in evidence the matter is closed by virtue of the operation of Section 36 of the Stamp Act. Therefore as provided under Section 36 of the Act, the admissibility of the document could not be called in question at subsequent stage of the suit on the ground that it has not been duly stamped. 15. That being the position, according to the law laid down by the Supreme Court, Section 36 is clearly applicable and consequently the order cannot be called in question either by the trial Court or any Court of superior jurisdiction in appeal or revision in any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. 16. So, when the document, once admitted in evidence is absolute in terms of Section 36 of the Indian Stamp Act, having regard to the nature of this enactment. It is neither permissible to interpret its provisions in any other manner than what they convey and signify. It appears from the language of Section 36 of the Stamp Act which says that permission should not be granted and the provisions of this Section has no elasticity and so it cannot be stretched to such an extent, importing what is not stated in it, to make this provision completely nugatory. Section 36 of the Act has its own effect and it has to be considered according to its own spirit. This bar is absolute in intent, purpose and object. Section 36 of the Act has its own effect and it has to be considered according to its own spirit. This bar is absolute in intent, purpose and object. It prevails in all circumstances. Hence, a document or an instrument once admitted in evidence, in such an unambiguous and clear environment at the trial, it is not correct to state that such document or instrument is inadmissible in evidence. 17. In the instant case as it appears from the impugned order dated 28.03.2001 the concerned document was admitted in evidence and marked as exhibit in that case. After accepting the said document as exhibit without objection from any corner the learned Trial Court directed the document is to be impounded nevertheless the agreement has been marked exhibit earlier. In view of such state of affairs, even if the document is not properly stamped then Section 36 of the Indian Stamp Act will come into play. Section 36 of the Act has its effect and such position cannot be changed. 18. So I am of the opinion that once a document has been marked as exhibit in the case at the time of examination of the witness without objection it is not open to the Trial Court to recall the said order and hold that the documents in question are to be impounded. 19. Accordingly, there is illegality and material irregularity in the impugned order passed by the learned Trial Court and as such it is liable to be set aside. 20. Accordingly, revisional application filed by the petitioner being CO 3601 of 2001 is hereby allowed. 21. Impugned order being no.15, dated 28th March, 2001 passed by the learned Civil Judge (Senior Division) at Alipore passed in connection with Title Suit No.91 of 1999 is hereby set aside. 22. Learned Trial Court is hereby directed to take appropriate step for expeditious hearing of the suit pending before it without giving unnecessary adjournment to either of the parties. 23. There will be no order as to costs. 24. Let the Trial Court record be sent down immediately. Urgent Photostat certified copy of this order, if applied for be given to the parties on payment of requisite fees.