Saifuddin Saheblal Vazir vs Smt. Habjabai Mishra Patel And ...
2002 Latest Caselaw 806 Bom

ORDER

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Perused the records. Rule, by Consent, rule made returnable forthwith.

2. The suit being Regular Civil Suit No. 440/1982 came to be tiled by the respondents for eviction of the petitioner from a plot of land admeasuring 27 x 54 sq. ft. out of property bearing C. T. S. No. 1333/27, "E" ward, Tarna Nagar Co operative Society, Sagarmal, Kolhapur and was decreed by the trial Court and the appeal against the same was dismissed by the lower appellate Court. The matter was carried in Writ Petition No.

1363/1995. The learned single Judge of this Court after taking stock of the facts of the case, disputed as well undisputed. Pinpointed the dispute being related to the document dated 31st March, 1976 which according to the respondents speaks of creation of lease for more than one year, and therefore, in the absence of registration thereof, is not admissible in evidence and cannot be read in evidence for any purpose whereas, according to the petitioner, the said document does not create lease but it is merely a receipt given by the respondents to the petitioner acknowledging the receipt of rent of the suit premises for a period of 98 years in advance, and in consideration of permission for subletting of the premises by the petitioner. After ascertaining the exact nature and the scope of the dispute relating to the document in question, it was held that:

"If the document dated 31st March, 1976 is held to be a document creating the lease as it is not registered, obviously it cannot be read in evidence of any purpose including for the purpose of showing that the landlady was permitted subletting of the premises. On the contrary, if the document is held to be a document not creating a lease, but merely acknowledging the receipt of advance rent, then obviously it is not compulsory to have it registered and, therefore, can be admitted in evidence."

With the above ruling in the matter, it was further observed that, :

"Both the sides have agreed before me that the evidence on record has not been appreciated by both the Courts below from this point of view."

And consequently with the consent of the parties, the matter was remanded to the trial Court for fresh trial of the suit only on the ground of subletting.

3. During the trial, the petitioner filed an application praying that the document in question may be exhibited and read in evidence. The application was objected to by the respondents. The trial Court by the impugned order dismissed the said application on the ground that the document of which the registration is compulsory, the same cannot be exhibited and that it is clear that a document in question has not been registered and, therefore, cannot be exhibited at any time or at any costs.

4. Assailing the impugned order, the learned Advocate for the petitioner has submitted that the trial Court has dismissed the application totally ignoring the rule issued by this Court in Writ Petition No. 1363/1995 and thereby has acted with material irregularity in exercise of its jurisdiction while rejecting the prayer for exhibiting the document and reading the same in evidence. Placing reliance in the decision of the full Bench of Madhya Pradesh High Court in Sardar Amar Singh v. Smt. Surinder Kaur , it was submitted that the document though has not been registered, it can be looked into for collateral purpose like for the purpose of considering the nature of the dealing and the status as that of a tenant in relation to the suit premises. It is also sought to be argued that the point relating to admissibility of the document in evidence and reading thereof in evidence can be decided after exhibiting the document in terms of Order XIII. Rule 4 of C. P. C. and in case the document is found to be not admissible in evidence it can always be rejected in terms of Rule 6 of Order XIII of C.P.C. after the document is exhibited under Rule 4 of the said Order. In alternative, it is sought to be argued that the trial Court could not have dismissed the application at the stage it has been dismissed and could have decided the same after deciding the issue relating to the admissibility of the document in evidence and having not done so has acted illegally. Simultaneously, It was also submitted that in case this Court is not convinced with the submission on behalf of the petitioner, then liberty may be given to the petitioner to review the application in question at the appropriate stage of the trial.

5. On the other hand, the learned Advocate appearing for the respondents drawing attention to para 524 of the Civil Manual and relying upon the decision of the Apex Court in the matter of Bajaj Auto Limited v. Behari Lal Kohli and referring to Section 49 of the Indian Registration Act, 1908 has submitted that the document being one of lease for 98 years and having not been registered is not at all admissible in evidence and, therefore, the same cannot be even exhibited. Attention is also drawn to the Order XIII, Rule 6 of C. P. C. in that regard. However, the learned Advocate for the respondents has fairly conceded that the trial Court has not at all considered the directions issued by this Court in Writ Petition No. 1363/1995.

6. The Full Bench of Madhya Pradesh High Court (supra) while considering the point as to whether an unregistered lease-deed can be used to show the nature and character of possession of the defendant that is whether he is a tenant in the premises or not; and when assuming demise of the premises to be under unregistered lease deed, then whether a monthly tenancy can be presumed on the facts and circumstances of the particular case before the full Bench, and after taking in to consideration the decision of the Madhya Pradesh High Court in Smt. Dhana Bai v. Smt. Kewara Bai ; of the Nagpur High Court in Dammulal v. Mohd. Bhai reported in AIR 1955 Nagpur 306; of the Apex Court in Padma Vithoba v. Mohd. Multani reported in AIR 1963 SC 70; of Madras High Court in Panchapagesa v. Kalyanasundaram ; of the Lahore High Court in Mohanlal v. Ganda Singh reported in AIR 1943 Lah 127; of the Apex Court in Mst. Kripal Kaur v. Bachan Singh ; of the Patna High Court in Ugni v. Chowa Mahto reported in AIR 1968 Patna 302 and Calcutta High Court in Swaranalata Mitra v. Durga Prasad reported in ILR (1955) 2 Cal 214, held that,:

"In view of the aforesaid discussion, we are clearly of the view that the un-registered lease deed can be used to show the nature and character of possession of the defendants and virtually from the nature of possession and other circumstances the status of the applicants (defendants) as tenant in the premises can as well be established."

7. The Apex Court in M/s Bajaj Auto's (supra) case while dealing with the issue as to whether the clause, "That they will not assign or under let or part with the premises hereby demised without the permission in writing of the landlord subject however to this proviso that they shall be entitled to assign or otherwise part with the possession of the said premises or any part thereof to their associate concerns without such consent but in any event the lessees shall be liable "for, the payment of the rent during the term hereby, granted." In an un-registered deed of lease can be

looked into for want of registration of the said lease-deed, held that :--

"The question whether a lessee is entitled to create a sub-lease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be dis-associated from the lease and considered separately in isolation. If a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sublet. It follows that the appellant cannot, in the present circumstances be allowed to rely upon the Clause in his, un-registered lease deed."

8. Before considering the rival contentions in the matter it will also be worthwhile to glance through the following provisions of Code of Civil Procedure relevant for the decision in the matter :--

(A) Rule 3 of Order XIII, provides that, "the Court may at any stage of the suit reject any document which it considers Irrelevant or otherwise inadmissible, recording the grounds of such rejection."

(B) Rules 4 and 6 of Order XIII which are very relevant for the decision in the matter read thus :

"4. Endorsements on documents admitted fn evidence. (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely :--

(a) the number and title of the suit,

(b) the name of the person producing the documents,

(c) the date on which it was produced, and

(d) a statement of its having been so admitted, and the endorsement shall be signed or initialled by the Judge.

Provided that in proceedings filed in Bombay Civil Court, the endorsement may be signed or initialled by such officer as the Principal Judge may authorise in this behalf.

(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge.

6. Endorsements on documents rejected as inadmissible in evidence. Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsement thereon the particulars mentioned in clauses (a), (b) and (c) of Rule 4, Sub-rule (1) together with a statement of its having been rejected, and the endorsement shall be signed or initialled by the Judge.

Provided that in proceedings filed in Bombay City Civil Court the endorsement may be signed by such officer as the principal Judge may authorise in this behalf."

9. Chapter XXVII of the Civil Manual deals with the matters pertaining to the "RECORDS" of the Court and under the heading "DOCUMENTS" it deals with the procedure pertaining to acceptance of documents on record and the manner in which they are to be exhibited or rejected in the course of trial. Accordingly, para 522(1) provides that, "All documents tendered in evidence shall be accompanied by a list in the form given as No. 5 in Appendix - of the first schedule of the Code of Civil Procedure". Para 523 (1) provides that, "As soon as the list is filed, the Bench Clerk should endorse on the back of each document the particulars mentioned in Clauses (a), (b) and (c) of Rule 4(1), Order XIII, Civil Procedure Code." Para 524 to which reference has been made by the learned Advocate for the respondents, read thus, :

"If a document included in the list is referred to in the proceedings before it is tendered in evidence and formally proved, it should be immediately marked for identification. When it is tendered in evidence, it should be detached from the list. If rejected, it should be endorsed as prescribed by Order XIII, Rule 6, Civil Procedure Code, and returned. If admitted, the endorsement referred to in the above rule should be completed and signed by the Judge (Order XIII, Rule 4, Civil Procedure Code) and the document should be assigned the appropriate exhibit number and filed in the record and all references to it in the depositions and judgment should bear that number. Every document should be further marked with the letter 'P' or 'D', according as it is tendered by the plaintiff or the defendant. The number assigned to each document should be endorsed on the list of documents mentioned above."

10. Considering the provisions of law referred to above, it is difficult to agree with the submission by the learned Advocate for the petitioner that any document admitted and exhibited in terms of Rule 4, can be thereafter rejected under Rule 6 of Order XIII of C. P. C. The contention, that exhibition of a document in evidence has nothing to do with the reading of the document in evidence has to be rejected. A document can be exhibited in evidence only when such a document is admissible in evidence and not otherwise. This is abundantly clear from the provisions of law contained in Rules 4 and 6 of Order XIII read with Para 524 of the Civil Manual. In fact, provisions of law contained in Rule 4 are to be read with the Rule 6 of Order XIII of C. P. C. cannot be considered to be referable to two different stages. The question of exhibiting the document under Rule 4 can arise only if the document is found to be admissible in evidence and in case it is not admissible, the same is to be rejected in terras of Rule 6 of Order XIII read with para 524 of Civil Manual. Rule 4 of Order XIII speaks of admission of document in evidence and not merely exhibition of document. Rule 6 of Order XIII nowhere speaks about revocation of the order passed by the Court under Rule 4 of Order XIII.

11. It was sought to be argued on behalf of the petitioner with reference to the obligation for endorsement on the document under Rule 4 and Rule 6, that it would disclose that occasion for exercising power under Rule 6 of Order XIII would arise only after endorsement in the nature specified under Rule 4 of Order XIII. The argument is to be rejected as being devoid of substance. The reference to the endorsement in terms of Clauses (a), (b) and (c) of Rule 4 and Rule 6 is for the purpose of identifying the document which has been admitted or rejected, as the case may be. Once a document is sought to be produced in the evidence and is admitted or rejected, there has to be some endorsement on such document disclosing the number of suit, person who has sought to produce the document and the date on which it was sought to be produced and admitted or rejected. Such endorsements assume more importance in case of rejection of documents to avoid unscrupulous attempt on the part of the person, who had earlier sought to produce such document, but had not succeeded and thereby avoid unnecessary inconvenience to the parties as well as to the Court so that the document with endorsement is clearly identifiable and there would be no scope left to the party for any such unscrupulous attempt.

12. In Javer Chand v. Pukhraj Surana while dealing with the question as to whether or not two hundis sued upon were admissible in evidence and considering the Section 36 of the Manwar Stamp Act, 1947 which provides 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", it was held that the said section is categorical in its 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 the proceeding on the ground that the instrument had not been duly stamped. It was ruled that "Section 36 does not admit of other exceptions. 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. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a 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."

13. In Ram Rattan v. Barang Lal while dealing with the point as to whether the document which is purported to be a Will of the deceased is a Will or Gift and if the latter, whether it is admissible in evidence on the ground that it was not duly stamped and registered as required by law, it was held that (para 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 objection in accordance with law. .

.....

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."

14. As rightly submitted by the learned Advocate for the parties, the learned single Judge of this Court in Writ Petition No. 1363/1995 in his order dated 30th November, 2000, had clearly observed that the Court below has to apply its mind to the issue as to whether the document in question is one creating a lease or a merely a receipt acknowledging the rent in advance and there upon to decide whether such document requires registration or not and then to proceed to consider the issue regarding the admissibility of the document. Bare reading of the impugned order apparently discloses that the trial Court has not carried out any such exercise and merely considering the law on the point that a document which requires registration having not been registered is held to be not admissible in evidence. The Issue as to whether the document in question is a document creating a lease or not, whether it is a receipt acknowledging the rent in advance or not, have not at all been considered by the trial Court. Undoubtedly, as rightly submitted by the learned Advocates for the respondents the occasion for such consideration had also not arisen before the trial Court. Certainly, the occasion for the same can arise when the document is sought to be tendered in the evidence by the party after entering into the witness-box. When such occasion arises certainly the Court below will have to consider the said issue and take an appropriate decision in that regard. Undoubtedly, the Court below while deciding the issue will have to bear in mind the directions in W.P. No. 1363/1995, the provisions of law referred to above as well as the decisions relied upon by the parties and which may further be relied upon in the matter. However, there is no question of granting any liberty as such to revive the application which has already been dismissed by the Court below by the impugned order. Suffice to say that considering the fact that the evidence on behalf of the petitioner has not been commenced before the Court below, certainly there will be an opportunity for the petitioner to raise the issue regarding the admissibility of the document, and for the respondents to contest the same. Being so, while confirming the decision of the Court below rejecting the application filed by the petitioner, it needs to be clarified, that the application should be deemed to have been rejected being pre-mature and the occasion for consideration of the issue regarding the admissibility or non-admissibility of the document has not yet been arisen and the same will have to be decided by the Court below in case the document is sought to be tendered in the evidence by the petitioner.

15. In the result, therefore, the petition partly succeeds and rule is made absolute in above terms with no order as to costs.