Bombay High Court
Vishwambhar Devrao Biradar vs Srirang Keshavrao Biradar on 9 May, 2016
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3467 OF 2005
WITH
CIVIL APPLICATION NO.5721/2007
IN WP/3467/2005
Vishwambhar s/o Devrao Biradar,
Age : 62 years, Occupation : Agriculture,
R/o Shelgi, Tq.Nilanga,
District Latur.
...PETITIONER
-VERSUS-
Srirang s/o Keshavarao Biradar.
(Died) through his L.Rs.:-
i) Shevantabai w/o Shrirang Biradar,
Age : 60 years, Occupation : Household,
R/o Shelgi, Taluka Nilanga,
District Latur.
ii) Ram s/o Shrirang Biradar,
Age : 40 years, Occupation : Agri,
R/o As above.
iii) Sukumar w/o Baburao Borole,
Age : 35 years, Occupation : Household,
R/o Pandhri, Post Hulsur,
Tq.Bhalki, District Bidar.
(Karnataka State).
...RESPONDENTS
...
Advocate for Petitioner : Mrs.C.S. Deshmukh.
Advocate for Respondents : Shri A.N.Sabnis.
...
CORAM: RAVINDRA V. GHUGE, J.
DATE :- 09th May, 2016
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Oral Judgment:
1 This petition was admitted on 23.08.2005 and interim relief
in terms of prayer clause (C) was granted. Prayer clause (C) reads as
under:-
"(C) Pending hearing and final disposal of this writ petition, the
proceedings pending before the IInd Joint Civil Judge, Junior
Division, Nilanga, in Regular Civil Suit No.487/1997 be stayed
and suspended."
The Petitioner is aggrieved by the order dated 22.10.2001
passed by the Trial Court below Exhibit-38 in RCS No.487/1997.
3 I have heard Mrs.Deshmukh, learned Advocate for the
Petitioner and Shri Sabnis, learned Advocate for the Respondents, at
length.
4 The issue is as regards an unregistered Sale Deed which has
been sought to be produced and is confronted to the witness. By the
application Exhibit-38, the Petitioner/ Plaintiff sought to examine the
attesting witness of the said unregistered Sale Deed. There was an
objection raised by the Respondents contending that an unregistered Sale
Deed would not be admissible in evidence considering trite law.
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5 The contention of the Petitioner is that the unregistered sale
deed at issue was being pressed into service only for collateral purpose.
Based on the said document, the Petitioner/ Plaintiff was not trying to
crystallize his claim set out in the suit. Since the sale deed was sought to
be utilized for collateral purpose, the application Exhibit-38 was filed.
6 The grievance is that the Trial Court has considered the
document at issue as if the Plaintiff is attempting to build his case on the
basis of the said document. Collateral purpose for which it is sought to be
pressed into service has been lost sight of by the Trial Court.
7 The Petitioner relies upon the following judgments:-
(a) Padma Vithoba Chakkayya vs. Mohd. Multani, AIR 1963 SC
(b) Bhaiya Ramanuj Pratap Deo vs. Lalu Maheshanuj Pratap Deo,
AIR 1981 SC 1937.
(c) Mahadeva vs. Commissioner, Mysore City Corporation, AIR
2003 Karnataka 217.
8 Shri Sabnis, learned Advocate for the Respondents, has
strenuously opposed this petition. By placing specific reliance on
paragraphs 23 and 29 to 34 of the judgment of the Honourable Supreme
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Court in the matter of K.B.Saha and Sons Private Limited vs. Development
Consultant Limited, (2008) 8 SCC 564, it is sought to be contended that
Section 49 of the Registration Act, 1908 is squarely attracted. The proviso
below Section 49 would be of no assistance to the Petitioner since an
unregistered Sale Deed is in fact being pressed into service only to prove
that the Petitioner has a right to possession over the suit property.
9 I have considered the submissions of the learned Advocates.
10 There is no dispute that the sale deed is an unregistered
document. The Petitioner claims to be in possession not on the basis of the
sale deed, but claims to be in possession prior to the signing of the sale
deed. It is contended that the said document is, therefore, being utilized to
prove collateral transaction and hence, for collateral purpose.
11 The learned Full Bench of this Court in the matter of
Hemendra Rasiklal Ghia vs. Subodh Mody, 2008(6) Mh.L.J. 886, while
dealing with admissibility of a document and specifically an unregistered
document, has concluded that despite the objection to such document,
which in itself is inadmissible in evidence, it can be admitted at any stage
of the suit reserving the decision on the question until final judgment in
the case.
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13 In my view, it would be apposite to reproduce the
observations of the learned Full Bench in paragraph 92 as under:-
"92. In view of the above analysis of the statutory
provisions and our discussion, we, accordingly,
articulate our conclusions as follows:
Answer to Question-A :
As already noticed, (i) objection to the
document sought to be produced relating to the
deficiency of stamp duty must be taken when the
document is tendered in evidence and such objection
must be judicially determined before it is marked as
exhibit;
(ii) Objection relating to the proof of
document of which admissibility is not in dispute must
be taken and judicially determined when it is marked
as exhibit;
(iii) Objection to the document which in itself
is inadmissible in evidence can be admitted at any
stage of the suit reserving decision on question until
final judgment in the case.
The Court trying the suit or proceedings as far as
possible is expected to decide the admissibility or proof
of document as indicated hereinabove. As we have
already added a word caution that while exercising
discretion judiciously for the advancement of the cause
of justice for the reasons to be recorded, the Court can
always work out its own modality depending upon the
peculiar facts of each case without causing prejudice
to the rights of the parties to meet the ends of justice
and not to give the handle to either of the parties to
protract litigation. The aim should always be to
prevent miscarriage of justice and expedite trial,
which is the dire need of the time.
Answer to Question-B :
The objection to the admissibility or relevancy
of evidence contained in the affidavit of evidence filed
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under Order XVIII Rule 4 of C.P.C. can be admitted at
any stage reserving its resolution until final judgment
in the case as held in Ameer Trading Corpn. Ltd. v.
Shapoorji Data Processing Ltd. (supra)."
14 Considering the above, I am of the view that the issue as to
whether, an unregistered document could be considered by the Trial
Court, can be decided while deciding the suit. It would be virtually
prejudging the matter since the Trial Court has come to the conclusion
that "the Plaintiff is not using the document for collateral purpose". Such
conclusion could not have been arrived at while deciding the application
Exhibit-38 wherein, the document is sought to be brought on record.
Considering the view of the learned Full Bench, this aspect can be
considered by the Trial Court while deciding the suit itself.
15 In the light of the above, this Writ Petition is partly allowed.
The impugned judgment dated 22.10.2001 is quashed and set aside.
Liberty is granted to the Petitioner to place on record the unregistered
document dated 09.03.1977.
16 Needless to state, the Trial Court shall consider, whether, the
said document is being utilized for collateral purpose. The Trial Court
shall, therefore, decide the said issue strictly within the ambit of Section
49 of the Registration Act, 1908 and in the light of the observations of the
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learned Full Bench reproduced above. All the contentions of the litigating
sides on this count are kept open. It is made clear that this Court has not
expressed any opinion that the said unregistered document can be utilized
by the Petitioner.
17 Rule is made partly absolute.
18 The pending Civil Application does not survive and the same
is disposed of.
19 Both the litigating sides pray that RCS No.487/1997 be
expedited considering it's pendency for the last 19 years. In the light of the
above, the Trial Court shall endeavour to decide RCS No.487/1997 as
expeditiously as possible and preferably within a period of NINE MONTHS
from today.
kps (RAVINDRA V. GHUGE, J.)
