Xiii Rule 3 Cpc By The vs Unknown
2023 Latest Caselaw 3498 AP

          THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

                  C R P Nos.2807 & 1059 of 2022


COMMON ORDER:


       C.R.P.No.2807 of 2022, under Article 227 of the Constitution

of   India, is   preferred   against the   order, dated   17.11.2022,

dismissing I.A.No.787 of 2022 in O.S.No.197 of 2009 on the file of

the Court of Additional Senior Civil Judge, Eluru, filed under Order

XIII Rule 3 CPC by the petitioner/plaintiff to de-exhibit the

document, dated 15.04.1997, which was inadvertently marked as

exhibit B1 on 06.12.2018.


2.    C.R.P.No.1059 of 2022 is preferred against the order, dated

04.04.2022, dismissing I.A.No.2326 of 2017 in O.S.No.105 of 2009

on the file of the same Court, filed by the 1st defendant under

Section 151 CPC to reject and ignore the document, dated

15.04.1997, for wrongful impounding of the same in violation of the

directions and orders of the High Court.


3.    Since these two revisions are connected and the parties being

one and the same, they are heard together and are being disposed

of by this common order.
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                                                  C.R.P.Nos.2807 & 1059 of 2022


4.     Heard Sri C.Venkaiah, learned counsel for the petitioner/

plaintiff   and   Sri   Y.V   Anil   Kumar,   learned   counsel      for   the

respondent/defendant in C.R.P.No.2807 of 2022.

5. The facts which are necessary for disposal of these revisions,

briefly stated, are as under:

The plaintiff filed suit in O.S.No.197 of 2009 for recovery of

possession of the plaint schedule property. The defendant in the

said suit filed another suit in O.S.No.105 of 2009 for specific

performance of agreement of sale, dated 15.04.1997, coupled with

an endorsement thereon, dated 20.08.1997. Both the suits were

clubbed together and common evidence is being recorded in

O.S.No.197 of 2009. When the evidence of the defendant in

O.S.No.197 of 2009 was being recorded in chief examination on

06.12.2018, an objection was raised by the plaintiff with regard to

document, dated 15.04.1997, on the ground of deficit stamp duty.

As on 06.12.2018, the matter regarding deficit stamp duty on the

document, dated 15.04.1997, was pending before the Supreme

Court and it was brought to the notice of the trial Court. Later, on

22.01.2019, the Supreme Court passed the following order:

"One question of law raised in the special leave petitions is that whether second review of the review petition is maintainable or not. Since the document in question was

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already impounded on 23.02.2012 a day prior to the passing of the order in C.R.P.No.730 of 2012, we are not inclined to go into the question of law raised by the petitioner as to the maintainability of the second review petition. The question of law raised by the petitioner is left open.

In the facts and circumstances of the present case, we are not inclined to interfere with the impugned order. The special leave petitions are, accordingly, dismissed.

However, the petitioner is at liberty to raise all contentious points at the time of trial including the validity of the impounding of the documents.

The Trial Court shall afford sufficient opportunity to both the parties and dispose of the same in accordance with law as expeditiously as possible."

6. The defendant in O.S.No.197 of 2009 filed I.A.No.2159 of

2009 to impound the unregistered dhakhal deed dated 15.04.1997.

As per orders, dated 15.03.2012, the trial Court directed the Bench

Clerk to call for an explanation from the District Registrar, Eluru, as

to how the document was impounded and stamp fee was collected

even before furnishing the opinion by the Court sought by the

District Registrar, vide letter, dated 02.02.2012, regarding the door

number of the property, plinth area of the building. Therefore, the

plaintiff filed I.A.No.2326 of 2017 to reject the unregistered dhakhal

deed, dated 15.04.1997, alleging that it was wrongfully impounded

and also to hear on the admissibility of the said document which is

mentioned in the list of documents proposed to be marked through

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DW1. The petition was dismissed on 04.04.2022 stating that the

unregistered dhakhal deed, dated 15.04.1997, was already

impounded, and therefore, question of rejection of the document

does not arise as the suit is filed for specific performance.

Aggrieved by the said order, the plaintiff preferred C.R.P.No.1059 of

2022 before this Court. The said revision petition is also coming up

for hearing along with this revision petition.

7. The trial Court received the document, dated 15.04.1997, in

evidence through DW1 and marked it as exhibit B1. The plaintiff

contends in this application that exhibit B1 was marked not with

consent and knowledge of the plaintiff and further the description of

the document is ingeniously stated in a fraudulent manner, because

the document, dated 15.04.1997, was impounded but the

endorsement dated 20.08.1997; that however, the document No.1

marked as exhibit B1 was described as an "agreement of

settlement/sale executed in the name of Smt. Bhyravabhotla Sesha

Bala Sundari with endorsement, dt.20.08.1997" that not only the

document, dated 15.04.1997, but also endorsement, dated

20.08.1997, is deficit in stamp duty and therefore, stamp duty and

penalty paid on the document, dated 15.04.1997, does not cure the

deficiency of stamp duty on the endorsement, dated 20.08.1997,

however, both are together got marked as a single document by

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drafting craft; that without considering the necessity of stamp duty

on the endorsement, dated 20.08.1997, the document was marked

and received in evidence inadvertently in a casual manner; and that

therefore, the plaintiff filed I.A.No.787 of 2022 to de-exhibit the

document, dated 15.04.1997, marked as exhibit B1 stating that

when a Court inadvertently admits in evidence a document without

application of mind and in a casual way, the Court is empowered to

de-exhibit the same.

8. The defendant filed counter to I.A.No.787 of 2022 opposing

the petition and stating that it is untenable to allege that the

unregistered dakhal deed, dated 15.04.1997, was impounded

contrary to the direction of the trial Court and admitting that

I.A.No.2326 of 2017 was dismissed but denying that exhibit B1 was

marked without consent and knowledge of the plaintiff and by

ingeniously describing it in a fraudulent manner. It is also stated

that though it is the duty of the Court to look into the document

before receiving it in evidence, but it is also the duty of a party to

bring to the notice of the Court about the nature of the document in

a fair way; and further stated that at this juncture, even after

dismissing I.A.No.2326 of 2017, on merits, the plaintiff again

cannot file this petition to de-exhibit the document marked as

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exhibit B1 (sic exhibit A1). Thus, the defendant prayed to dismiss

the petition.

9. After hearing both parties, the trial Court dismissed

I.A.No.787 of 2022 observing that once a document is impounded,

it can be marked for collateral purpose and that in a suit for specific

performance, once a document is impounded, it should be marked.

For better appreciation, the operative portion of the order impugned

is reproduced hereunder:

"12. This is the settled law, once the document was impounded, the same can be marked with regard to the collateral purpose. But, when suit is initiated for specific performance, once the document was impounded, the said document should be marked but with regard to the other aspect whether the said document is treated as sale deed will be considered at the time of passing of the judgment.

13. According to the above provision, the document can be rejected at any stage if it is irrelevant or otherwise inadmissible, but the said document is mother document herein because the suit is initiated for specific performance so question of irrelevance does not arise. Now come to the inadmissibility, once the document is impounded, the document is admissible. There is no endorsement of the District Registrar, Eluru, specifically on the Ex.B1 as he impounded the document, dated 15.04.1997 but not impounded the endorsement. When there is no specific endorsement, this is the duty of the petitioner to get the clarification from the concerned authorities, but not clear.

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Moreover, the C.R.P.No.1059 of 2022 is pending before the Hon'ble High Court of A.P with regard to the said document the moving of this application to demark the Ex.B1 is not at all maintainable because already moved the application for rejection of the document as invalid.

17. The above rulings are not applicable to the present case facts because there the document was already impounded but, specifically there is no endorsement as the same was impounded on the document, dated 15.04.1997, only but not endorsement. First the same should be clarified by the petitioner/plaintiff, then only he can question the same, so the petitioner is not entitled to seek the said relief and already moved one application for rejection of the said document."

With the above observation, the petition was dismissed.

10. Having been aggrieved by the aforesaid order, C.R.P.No.2807

of 2022 is preferred.

11. The foremost contention of the petitioner is that though the

transaction under the document, dated 15.04.1997, and

endorsement, dated 20.08.1997, were written on the same sheets

of paper, they are two separate documents in the eye of law as both

transactions are different, though there is nexus between them as

per the averments, and therefore, impounding of the first

transaction, dated 15.04.1997, does not cure the deficiency in the

stamp duty required to be paid with regard to other transaction

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under the endorsement, dated 20.08.1997. It is further vehemently

contended that the transaction dated 15.04.1997 is a settlement

deed, whereas, the transaction, dated 20.08.1997, is an agreement

of sale and these transactions are separated in their nature, and

therefore, liable to stamp duty under different provisions of law at

different rates and thus collection of stamp duty on one document

does not cure the deficiency of stamp duty of the other document.

12. Nextly, it is submitted that in a suit for specific performance,

an agreement of sale may be received in evidence though not

registered in view of Section 49 of the Registration Act, but on

payment of necessary stamp duty and penalty required. However,

document of settlement which requires both registration and stamp

duty cannot be received in evidence even on collection of stamp

duty and penalty because such a document is not exempted to be

received in evidence under Section 49 of the Registration Act.

Therefore, it is contended by the learned counsel for the revision

petitioner/plaintiff that a document which ought not to have been

received in evidence has been received in evidence due to

inadvertent mistake under the impression that the document was

impounded and so it can be demarked as per the decision of this

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Court in Abdul Rafi @ Abdul Rawoof v. Venkataiah, died by

L.Rs and Others1.

13. On the other hand, learned counsel for the respondent/

defendant submitted that when once a document has 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

has not been duly stamped and placed reliance on the decision of

the Supreme Court in Sirikonda Madhava Rao v. N.Hemalatha &

Others2. Learned counsel further submitted that the transactions

dated 15.04.1997 and 20.08.1997 are integral and cannot be

separated as two documents and that the plaintiff cannot question

marking of the document as the objection raised for marking of the

document was rejected in I.A.No.2326 of 2017.

14. In reply, learned counsel for the petitioner submitted that the

decision of the Supreme Court (2 supra) is not applicable to the

present case since the said decision is applicable to cases where no

objection was taken prior to receiving the document in evidence,

whereas in the present case, an objection was taken after its

marking. He further submitted that though the objection raised

prior to marking of the document was rejected, such an order was

2019 (4) ALT 409 (S.B)

2022 Live Law (SC) 970

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challenged and the same has not attained finality due to pendency

of C.R.P.No.1059 of 2022, and so, it is still open for the petitioner to

question the admissibility of the document in evidence and ask for

demarking the document.

15. Initially, when the document, dated 15.04.1997, was sent to

the District Registrar to collect stamp duty and penalty, vide orders,

in I.A.No.2159 of 2009, the District Registrar asked information

from the Court regarding door number and extent. However, even

before sending the information, the stamp duty and penalty were

collected as a deed of settlement. The Court also directed the

District Registrar to collect stamp duty on the settlement deed,

dated 15.04.1997. Since the District Registrar collected stamp duty

and penalty even before the information was furnished by the

Court, the plaintiff challenged it before the High Court in

C.R.P.No.730 of 2012. Later, the final judgment and order dated

05.06.2014, in C.R.P.M.P.No.1246 of 2014 in C.R.P.M.P.No.5169 of

2012 in C.R.P.No.730 of 2012, dated 27.11.2014 in C.R.P.M.P.

No.4231 of 2014 in C.R.P.No.730 of 2012 passed by the High Court

of Judicature at Hyderabad (For the State of Telangana and the

State of Andhra Pradesh) was challenged before the Supreme Court,

whereby, the Supreme Court passed the above noted order, dated

22.01.2019, giving liberty to raise all contentious points at the time

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of trial including the validity of the impounding of the document by

leaving the question of law raised by the petitioner open.

16. Therefore, the petitioner filed I.A.No.2326 of 2012 raising an

objection for marking of the document, however, the same was

dismissed. Even before the decision in C.R.P.No.1059 of 2022 filed

against the said order is taken, the document was marked as

exhibit B1. Thereby, the petitioner had to file I.A.No.787 of 2022 to

demark the document.

17. A perusal of the record shows that an unregistered document,

dated 15.04.1997, was executed by Smt. Bhyravabhotla Sesha Bala

Sundari W/o Venkata Rama Sastry to Smt. Kothapalli Venkata

Lakshmi Bhanumathi W/o late Veerabhadram under settlement

deed. On the backside of the 1st page of the said document,

another transaction, dated 20.08.1997, was scribed endorsing to

the following effect (translated from Telugu language).

" On 20.08.1997, you have paid Rs.1,10,000/- due to me towards this settlement deed (Rupees one lakh ten thousand) and I received the same. 1st floor is being constructed by you. In fact, I agreed to sell the 1st floor site for Rs.1,10,000/-. But as there was no sufficient amount for getting sale deed, instead of sale agreement I executed settlement on 15.04.1997. According to our arrangement, I received Rs.1,10,000/- completely. As such, whenever you demand I will execute proper sale deed on stamped paper and get it registered and deliver the same to you at your expenses. This is my consent."

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18. A perusal of both these transactions indicate that they are

separate, though have nexus, and cannot be treated as a single

document since the nature of transactions are distinct. Admittedly,

both the transactions under the settlement deed and agreement of

sale are governed by different provisions of stamp duty and the rate

of stamp duty liable to be collected on them is different.

19. Before proceeding further, Sections 17(1)(g) and 49 of the

Registration Act, 1908 are excerpted hereunder:

'17. Documents of which registration is compulsory-- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this act came or comes into force, namely:-

(a) instruments of gift of immovable property;

       (b)    xx xxxx
       (c)    xx xx xx
       (d)    xx xx xx
       (e)    xx xx xx
       (f)    xx xx xx
       (g)    agreement of sale of immovable property of the value of
      one hundred rupees and upwards;

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a

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district, the terms granted by which do not exceed five years, and the annual rents reserved by which do not exceed fifty rupees.

49. Effect of non-registration of documents required to be registered- No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall:

      (a)       affect any immovable property comprised therein, or
      (b)       confer any power to adopt; or
      (c)       be received as evidence of any transaction affecting
      such property or conferring such power,
      Unless it has been registered:
                Provided   that   an   unregistered   document     affecting

immovable property and required by this Act, or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.'

20. Of course, these two transactions require registration as well

under Section 17(1) of the Registration Act. As per Section 49 of

the Registration Act, an unregistered agreement of sale can be

received in evidence in a suit for specific performance of the

agreement of sale even for the main purpose of proving the fact of

agreement of sale between the parties, whereas, in respect of other

documents, such a document evidencing the transaction can be

received in evidence only for the purpose of collateral transaction

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which also does not require registration and not establishing the

main transaction in the document which requires registration.

Therefore, in such a case, even on payment of stamp duty and

penalty, the transaction under such document can be looked into

only for establishing collateral transaction but not for the purpose of

establishing the main transaction. But, it is not so in case of an

unregistered agreement of sale in a suit for specific performance as

it can be used for main purpose as well, on payment of the stamp

duty as per law.

21. Therefore, in the present case, the document, dated

15.04.1997, which is a deed of settlement, creating right in the

property cannot be received in evidence even on payment of stamp

duty, for establishing the main transaction of transfer of title even

on payment of stamp duty, but can be used for establishing any

specified collateral transaction; whereas the agreement of sale

which is recorded in the transaction, dated 20.08.1997, can be

received in evidence as an evidence of the agreement of sale for the

purpose of suit for specific performance, on payment of stamp duty

along with penalty as required under law if it is deficit and not paid

so far. In this case, the stamp duty collected is in respect of the

transaction dated 15.04.1997, i.e., settlement deed, as indicated in

the certificate/letter dated 02.02.2012, of the District Registrar, and

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therefore, it appears that it is not in respect of the transaction dated

20.08.1997. As such, without collecting the stamp duty and penalty

on the document, dated 20.08.1997, if not collected, it cannot be

received in evidence at all. It is only on payment of necessary

stamp duty with penalty on the document, dated 20.08.1997, it can

be received in evidence in O.S. No.105 of 2009. As such, by

payment of stamp duty and penalty collected on the deed of

settlement, dated 15.04.1997, the document dated 20.08.1997

cannot be considered in evidence merely because it is scribed on

the same sheet of paper used for writing the deed of settlement

dated 15.04.1997. Even when the document, dated 15.04.1997,

was sent to the District Registrar for collection of stamp duty, it was

not specifically indicated that the stamp duty and penalty is

required to be collected on the document dated 20.08.1997. By

then, no one paid attention to the said document as a separate

transaction and requires registration as well as separate stamp

duty. Since both the documents are to be treated separately, mere

marking of the settlement deed, dated 15.04.1997, does not

discharge the obligation of the plaintiff in the suit for specific

performance to prove the transaction of the agreement of sale

evidence in the document dated 20.08.1997 to be brought in

evidence. In fact, without such document, dated 20.08.1997 in

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evidence, the plaintiff cannot establish the transaction of agreement

of sale which is foremost required to get the relief in a suit for

specific performance.

22. Insofar as the document, dated 15.04.1997, is concerned,

though it was marked as an exhibit as already stamp duty was

collected as a settlement deed, and its admissibility in evidence for

want of registration is still open for challenge, because the collateral

transaction for which it was received in evidence was not indicated.

23. Insofar as objection regarding the stamp duty is concerned, it

must be raised at the threshold as it can be cured by payment of

stamp duty along with penalty. Whereas, the objection as to

admissibility of a document for want of registration can be raised

and decided at any stage. Therefore, insofar as the document,

dated 15.04.1997, is concerned, the admissibility of the document

for want of registration can be dealt with even while taking final

decision after trial since it was already taken. Merely because a

document is received in evidence by assigning to it an exhibit

number, the same does not amount to receiving the document in

evidence in the normal course. However, in the present case, the

objection taken was finally decided and the document was marked

in evidence without any reservation and so, it can be construed that

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the document was received in evidence by then. Therefore, it

cannot be re-agitated, if left unchallenged. But the decision

rejecting the objection is challenged in revision in C.R.P.No.1059 of

2022.

24. In the light of the foregoing discussion, since the document

was marked as an exhibit B1 and received in evidence without

indicating the purpose of collateral transaction for which it is

marked as exhibit B1, it shows that the trial Court committed error

in receiving the document in evidence as it cannot be admitted in

evidence for purpose of main transaction for want of registration.

As such, the trial Court is required to indicate the purpose of

collateral transaction in respect of which the document, dated

15.04.1997, is received in evidence. Till that time, it cannot be

considered as a document fit to be received in evidence. So, since

the document evidencing transaction of settlement of property was

inadvertently received in evidence without indicating the collateral

transaction, in a suit for specific performance, just because stamp

duty was collected, the order by which the document was marked

as exhibit B1 is not legal and needs to be set aside. So, the said

document, dated 15.04.1997, is to be demarked, leaving it open to

the trial Court to specify the collateral transaction in respect of

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which it is intended to be received in evidence and then re-mark the

document.

25. Insofar as the document, dated 20.08.1997, is concerned, it

cannot be treated as received in evidence as there is specific finding

and even if it is construed as received, it cannot be received in

evidence even by applying Section 49 of the Registration Act, unless

separate stamp duty and penalty are collected thereon, as per the

law. Therefore, this Court directs the trial Court to pass an order

about the same.

26. Insofar as C.R.P.No.1059 of 2022 is concerned, in view of the

comprehensive order passed in C.R.P.No.2807 of 2022, which arises

out of an order passed subsequent to implementation of the order

in I.A.No.2326 of 2017, which is under challenge in C.R.P.No.1059

of 2022, this revision can be disposed of subject to the observations

in C.R.P.No.2807 of 2022.

C.R.P.No.2807 of 2022:

27. Subject to the above observations, C.R.P.No.2807 of 2022 is

allowed.

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C.R.P.No.1059 of 2022:

28. This revision is disposed of subject to orders in C.R.P.No.2807

of 2022.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

_________________ B.S.BHANUMATHI, J 17.07.2023

Note:- Issue CC by 20.07.2023 (B/o) RAR