Telangana High Court
Cheemarla Venkataiah vs Yahya Bahamed on 26 July, 2024
THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
Civil Revision Petition No.1117 OF 2024
ORDER:
Aggrieved by the docket order dated 29.02.2024 in O.S.No.81 of 2022 (hereinafter will be referred as 'impugned order') passed by the learned Senior Civil Judge, Kalwakurthy (hereinafter will be referred as 'Trial Court'), the defendants have preferred the present Civil Revision Petition to set aside the impugned order.
2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the Trial Court.
3. The brief facts of the case, which necessitated the revision petitioners to file the present revision, are that the plaintiffs have filed a suit for specific performance of agreement of sale, dated 14.05.2008 against the defendants. During the course of trial, the plaintiff got examined as PW1 and got marked Exs.A1 to A7. While marking a document i.e., declaration cum receipt, the counsel for the defendants have raised an objection that the said declaration cum receipt cannot be marked as it requires stamp duty and penalty to that effect and that the plaintiffs have created the said document. The trial Court has passed the 2 MGP, J crp_1117_2024 impugned docket order dated 29.02.2024 marking the said document as Ex.A8 on behalf of plaintiffs. Aggrieved by the same, the defendants have filed the present Civil Revision Petition to set aside the impugned document order.
4. Heard both sides and perused the record including the grounds of revision.
5. The contention of the defendants is that the learned trial Court without referring the written arguments filed by the defendants in a proper perspective and erroneously construed the disputed document dated 10.03.2017 as declaration cum receipt and also proposed to mark the document as Ex.A8 in the suit filed by the plaintiffs for specific performance. It is further contended that learned trial Court ought to have appreciated that the suit for specific performance was filed in March, 2020 based on alleged agreement of sale dated 14.05.2008 i.e., after twelve years from the date of alleged agreement of sale. It is to be seen that the limited issue involved in this revision is whether the alleged declaration cum receipt, which was proposed to be marked as Ex.A8 before the trial Court, can be permitted or not. The trial Court has passed a lengthy docket order, which forms part of the submissions 3 MGP, J crp_1117_2024 made by both the parties before the trial Court. As can be seen from the first paragraph of the impugned docket order, it is very clear that the learned counsel for the defendants have raised several objections to mark the alleged declaration cum receipt as one of the documents. Thus, whenever objections are raised by either of the parties while marking a document or proposing to mark a document, a duty is cast on the learned trial Court Judge to mark the said document subject to objection until and unless such objections are unsustainable.
6. Admission of a document in evidence is different from proof of its contents. Order XIII Rules 32 and 43 of the Code of Civil Procedure, 1908 provide rules for admission or rejection of documents. The Court may at any stage of the case reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. While reading the record, the parties and the court should be able to know as to which document was placed before the witness while he/she is deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering which was the document to 4 MGP, J crp_1117_2024 which the witness was referring to which he is deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor can the document be held to have been proved merely because it has been marked as an exhibit.
7. 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. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Parties to 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. In the case on hand, the defendants have raised objection that the disputed document cannot be marked as it not sufficiently stamped and that the said document is a created document. 5
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8. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. Admittedly, the objection is with regard to the admissibility of document. Merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. A prompt objection does not prejudice the party tendering the evidence, for two reasons:
firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both parties. Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such 6 MGP, J crp_1117_2024 objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration.
9. It is the specific contention of the defendants that the learned trial Court Judge ought to have appreciated that the disputed document dated 10.03.2017 which is made on Rs.100/- stamp paper, comes within the meaning and scope of Section 49A (b) of Schedule - IA of Indian Stamp Act, 1899 and requires payment of stamp duty being a settlement deed and in the absence of payment of deficit stamp duty the same ought not to have been allowed to be received and marked as evidence by the trial Court. It is further contention of the defendants that the finding of the learned trial Court that the document as declaration cum receipt not only comes within the meaning of Section 214 of the Indian Stamp Act, 1899 (being an instrument) and also chargeable under Section 6 of the said Act and in the absence of not duly stamped as required under 7 MGP, J crp_1117_2024 Section 2 (11) of the Act unless the same is impounded as per the mandatory requirement of Sections 33 and 38 of the Act. The trial Court has passed the impugned docket order by relying upon the decision of High Court of Andhra Pradesh in B. Bhaskar Reddy v. Bommireddy Pattabhi Rami Reddy (died) per LRs and others 1, wherein it was held that wherever the agreement holder is not in possession of the property under agreement of sale, even though there is a recital in the agreement as to delivery of possession, he need not pay proper stamp duty as required.
10. As can be seen from the contents of the disputed document, which is titled as 'declaration cum receipt', certain rights and liabilities are being created in favour of the parties in respect of suit schedule property. Though the disputed document is appearing to be a receipt, in the initial paragraph a declaration was alleged to have been made that the suit schedule property was sold. The disputed document is depicting the details with regard to entering of agreement of sale between the parties in respect of suit schedule property, payment of advance sale consideration on few occasions and a 1 2010 (6) ALD 307 8 MGP, J crp_1117_2024 declaration that the property is sold and that the registration will be done after receiving balance sale consideration. Though the plaintiff is contending that possession was not delivered, the disputed document is silent about that aspect, however, the declaration that the property was sold is creating any amount of ambiguity. Since there is a declaration in the disputed document that the suit schedule property is sold and considerable sale consideration was alleged to have been paid, certain rights and liabilities are created on respective parties.
11. In Lalbabu Ansari v. Lmm International and others 2 the High Court of Calcutta observed as under:
"Admittedly, the receipt dated September 26, 2003 was not duly stamped but it creates the rights and liabilities between the parties. Under such circumstances, I am of the view that the decision 1999 (2) CLJ 259 and (2002) 2 WBLR (Cal) 440 are very much applicable in the instant case. Though Mr. Bidyut Banerjee has referred to this decision of (2002) 2 WBLR (Cal) 440 in support of his contention but ultimately the Hon'ble Single Judge has observed in the last part of the paragraph 8 and the paragraph 13 that the receipt can be termed as instrument and / or agreement for sale for the purpose of specific performance of contract."
12. Furthermore, though the learned trial Court Judge has incorporated in the impugned docket order with regard to the contention of the plaintiffs that they need not pay any stamp, 2 (2010) 09 CAL CK 0061 9 MGP, J crp_1117_2024 the learned trial Court Judge has not expressed any opinion as to whether the document requires to be impounded or not. The disputed document is appearing to be a settlement deed. Failure to pay the required stamp duty can render a document non -binding and may lead to legal complications in the future. Once the stamp duty is paid and the document is sufficiently stamped, it becomes a legally binding contract between the parties involved.
13. The learned counsel for the revision petitioners/ defendants contended that learned trial Court ought to have appreciated that the disputed document is only created and manipulated to overcome the maintainability of the suit even after getting execution of registered sale deed dated 21.05.2009 in pursuance of the alleged agreement of sale dated 14.05.2008 without there being any cause of action and the suit was filed after 12 long years from the date of agreement. Whether the suit filed is within the prescribed limitation and whether the document is forged or fabricated are the questions, which are nothing but merits of the case that have to be decided by the trial Court after conclusion of trial but not at this stage. Moreover, even for the sake of arguments, if the above 10 MGP, J crp_1117_2024 contention of the revision petitioners/defendants is accepted as true, then the very purpose of impounding and paying stamp fee for a manipulated and created document becomes a futile exercise. However, the limited scope in this revision is whether the impugned docket order passed by the learned trial Court with regard to the admissibility of document is in proper perspective or not.
14. In D. Sujata and another v. Revoori Vasantha and another 3 the Hon'ble High Court of Andhra Pradesh held that Section 36 of the Stamp Act mandates that once an instrument has been admitted in evidence, the admissibility thereof cannot be called in question, except before an Appellate Court, as provided for under Section 61 of the said Act. It is further held that unless and until there is a judicial determination, it cannot be said that the document has been admitted in evidence, though it is marked. Mere marking of the document itself is not sufficient and there should be judicial determination as to the nature of the document and its admissibility. Further, the words 'admitted in evidence' appearing in Section 36 of the Stamp Act means 'admitted after judicial consideration of the 3 2005 (4) ALT 626 11 MGP, J crp_1117_2024 circumstances relating to the admissibility'. There shall be a judicial determination of the question whether the document can be admitted in evidence or not for want of stamp duty, non- registration etc.
15. In a decision reported in Trinadh Patro v. Lingaraj Rana 4 the High Court for the erstwhile State of Andhra Pradesh has succinctly explained the distinction between the concepts of 'admissibility' and 'relevancy' by holding that they are separate and different. It is held that 'admissibility' and 'relevancy' are two tests for judicial approval of the evidence tendered by a party. In respect of documentary evidence also the Court shall apply these two tests before admitting the document into evidence. Admissibility of a document in evidence means the admissibility under the provisions of Indian Evidence Act and also other enactments such as Indian Stamp Act, Registration Act etc. So, before approving a document for evidence, the Court has to apply its judicial consideration as to whether the document produced is hit by any of the provisions of Indian Evidence Act or other laws. It is only when the document is not hit by provisions of any such enactments the Court shall admit 4 2015 (6) ALD 617 12 MGP, J crp_1117_2024 the same in evidence. Then, so far as relevancy of the evidence is concerned, it is held in this decision that the evidence produced by a party shall pass the test of relevancy applied under Sections 5 to 55 of Indian Evidence Act i.e. the evidence must be relevant to the fact in issue in one of the ways prescribed under Sections 5 to 55 of the Evidence Act. Thus, it is to be noticed that admissibility and relevancy are two different concepts altogether. In view of the aforesaid legal exposition of law, the factual matrix of the present case would demonstrate that the trial Court has not judicially determined the probative value of the documents in question with reference to the substantive laws. It is legally deemed that those documents are only tentatively proposed to be received in evidence but not "admitted in evidence" and as such, all legal and tenable objections relating to their admissibility and probative value can be raised by these revision petitioners/ defendants at an appropriate stage in the suit.
16. The learned counsel for the revision petitioners/ defendants submitted that the disputed document has already been marked but as can be seen from the impugned docket order, by way of impugned docket order, the trial Court Judge 13 MGP, J crp_1117_2024 has adjourned the matter for marking the disputed document. Thus, it appears that the trial Court Judge is proposing to mark the said document on the next date of adjournment. Hence, the document proposed to be received in evidence subject to objections to be raised by the revision petitioners/defendants. The learned trial Court shall consider all the objections raised by the revision petitioners/defendants with reference to the disputed document and shall decide the same according to law at an appropriate stage in the suit.
17. In M/s. Z Engineers Construction Private Limited v. Bipin Bihari Behera 5 the Honourable Supreme Court observed as under:
"During the course of trial, the trial court had chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised. This Court found that it is an archaic practice that whenever any objection is raised regarding the admissibility of any material in evidence, the Court does not proceed further without passing an order on such objection. This Court found that any decision on objection is challenged in appeal or revision which unnecessarily prolongs the trial. Such practices proved to be hindrance which impede and restrict the progress of trial proceedings. Such proceedings must be recast and remodeled to give way to the acceleration of trial proceedings. It is thereafter, the Court held as under:
"14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected 5 (2020) 02 SC CK 0044 14 MGP, J crp_1117_2024 document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)"
11. We find that the trial court as well as the High Court returned the findings on the bare reading of the power of attorney and observed that since it is a registered document, therefore, it is properly stamped. But the question as to whether in terms of the explanation inserted by the Orissa Act, such power of attorney is liable to be stamped as conveyance, on account of the delivery of possession at the time of execution of power of attorney or thereafter has not been examined.
12. We find that the question whether possession was transferred at the time or after execution of such power of attorney is a question of fact which is required to be decided by the Court at the time of final decision being adjudicated, after evidence is led by the parties and not merely on the basis of recitals in the power of attorney. Such process would be fair and reasonable keeping in view the provisions of Orissa Act.
13. We find that in the facts of the present case, the objection related to deficiency in stamp duty on a power of attorney which the appellants claim to be conveyance, depends upon the finding regarding delivery of possession in terms of the power of attorney. Generally speaking, such objection is required to be decided before proceeding further. However, in a case where evidence is required to determine the nature of the document, it is reasonable to defer the admissibility of a document for insufficient stamp duty at the time of final decision in the suit.
14. Therefore, we find that the order passed by the trial court on 14 th December, 2018 and the High Court on 24th January, 2019 are liable to be set aside and are, thus, set aside. The matter is remitted to the trial court to decide the objection of admissibility of the document on account of being insufficiently stamped in light of the findings recorded, after evidence is led by the parties. The application dated 3rd September, 2018 filed by the appellants shall be decided along with the main suit, when the question of delivery of possession at the time of the execution of the power of attorney or thereafter shall be determined."
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18. Even in the case on hand, the plaintiffs are contending that the possession in respect of suit schedule property was not delivered to them and on the other hand, the defendants are contending that the said document is forged and created document. Though the defendants contended that the document is forged and created, no steps were initiated by the defendants to establish the same. Thus, there is lot of ambiguity as to whether possession in respect of suit schedule property was delivered or not and whether the document was created or fabricated etc and thereby the nature of the document is also appearing to be unclear. Thus, considering the principle laid down in the above said decision, this ambiguity can only be cleared only after evidence is adduced on behalf of both the sides. Furthermore, as stated supra, though the disputed document is titled as declaration cum receipt, certain aspects like the nature of the document and whether such document is required to be sufficiently stamped or not, can be decided after trial and prior to passing the final judgment. In such circumstances, where evidence is required to determine the nature of the document, it is reasonable to defer the admissibility of a document for insufficient stamp duty at the time of final decision in the suit.
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19. With the above observations, this Civil Revision Petition is disposed of. The learned trial Court shall defer the admissibility of the disputed document for insufficient stamp duty and also the genuineness of the said document till final decision in the suit. In the meanwhile, the trial Court shall mark the disputed document subject to objections raised or to be raised by the defendants. Further, the trial Court shall proceed with the case on merits uninfluenced by any of the remarks or observations made by this Court in this order. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G. PRIYADARSINI Date: 26.07.2024 Note: LR Copy to be marked.
B/o. AS