Smt. Sushilabai Wd/O Jodharam ... vs Shri. Abhimanyu Hasanand Kukreja ...
2017 Latest Caselaw 1808 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH : NAGPUR


                              WRIT PETITION NO.980/2016

Smt. Sushilabai Wd/o Jodharam Anandani, 
aged about 87 Yrs., Housewife & Partner in 
business, R/o 35, Sindhu Nagar Society, 
Jaripatka, Nagpur, through Power of Attorney
Holder Shri M.J. Anandani.                                                                 ..Petitioner.

     ..Vs..

1.   Shri Abhimanyu Hasanand Kukreja,
     aged about 70 Yrs., Occu. Businessman, 
     trading in medicines in the name and 
     style of Kukreja Agency, Dawa Bazar, 
     Gandhibagh, Nagpur. 

2.   Shri Omprakash S/o Pannalal Deshraj
     since deceased through L.Rs.

2(i) Smt. Manjushree Omprakash Deshraj,
     aged about 65 Yrs., Occu. Housewife.

2(ii) Shri Vishal S/o Omprakash Deshraj,
      aged adult.

2(iii)Shri Varunsingh S/o Omprakash Deshraj,
      aged adult.

2(iv) Ku. Divyasing D/o Omprakash Deshraj,
     aged adult.

     2(i) to (iv) R/o Deshraj Bhawan, 
     Gandhi Chowk, Sadar, Nagpur. 

3.   Shri Kirankumar S/o Pannalal Deshraj,
     aged adult, R/o 12, Ram Nagar, Haridwar, 
     U.P.

4.   Shri Kirankumar S/o Pannalal Deshraj,
     through his power of attorney holder 


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           Shri Manishkumar S/o Kirankumar 
           Deshraj, R/o Deshraj Bhawan, Sadar
           Bazar, Gandhi Chowk, Nagpur. 

5.         Shri Anoopsingh S/o Amolaksingh Bhatiya,
           aged adult, Occu. Business,  R/o 361, Guru
           Nanakpura, Panchpaoli, Nagpur.

6.         Nagpur Improvement Trust,
           Civil Lines,  Nagpur.                                                                                                                  ..Respondents.
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            Shri V.V. Bhangde, Advocate for the petitioner. 
            Shri D.N. Dani, Advocate for respondent No.1.
            Shri Masood Shareef, Advocate for respondent Nos.2(i) to 2(iv).
            Shri Shashank M. Agrawal, Advocate h/f Shri R.O. Chhabra, Advocate for respondent No.6.
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                                                                 CORAM :  Z.A.HAQ, J.

                                                                 DATE  :     18.4.2017.




ORAL JUDGMENT

1. Heard Shri V.V. Bhangde, Advocate for the petitioner, Shri D.N.

Dani, Advocate for respondent No.1, Shri Masood Shareef, Advocate for

respondent Nos.2(i) to 2(iv) and Shri Shashank M. Agrawal, Advocate h/f Shri

R.O. Chhabra, Advocate for respondent No.6. None for the other respondents

though served.

2. Rule. Rule made returnable forthwith.

3. The original plaintiff has challenged the order passed by the trial

Court on application (Exh. No.208) filed by the defendant Nos.2 to 4 praying

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that the documents (Exhs.88, 89 and 90) on which the plaintiff relies to

substantiate his claim be impounded. The trial Court has partly allowed the

application and has directed the plaintiff to take steps for impounding of the

above documents. The plaintiff has also challenged the order passed by the

trial Court on the application (Exh. No.211) by which the plaintiff sought

review of the order passed on the application (Exh. No.208). The learned

trial Judge has rejected this application (Exh. No.211) also.

4. Though various submissions are made by the learned Advocates for

the respective parties, after hearing and considering the points raised, I find

that the impugned orders are unsustainable as they are not in consonance with

the law laid down by the Hon'ble Supreme Court in the judgment given in the

case of Javer Chand and Ors. V/s. Pukhraj Surana reported in AIR 1961 SC

1655.

It is undisputed that the documents (Exh. Nos.88, 89 and 90) were

filed alongwith the plaint on or about 2 nd December, 1996. It is undisputed

that the plaintiff filed affidavit in lieu of examination-in-chief on 19 th July,

2010, entered witness box and the documents came to be exhibited. It is

undisputed that the cross-examination of the plaintiff by the defendant No.5 is

undertaken on 2nd September, 2010 and in the cross-examination the above

referred documents were confronted to the plaintiff. It is undisputed that on

6th September, 2014 the cross-examination of plaintiff on behalf of the

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defendant Nos.2 to 4 started and again the above referred documents are

confronted to the plaintiff and after this on 9 th October, 2014 the application

(Exh. No.208) came to be filed.

5. The submission on behalf of the petitioner - plaintiff is that once the

document is admitted / accepted, it is not open for the Court to re-examine the

issue of admission of the document except as provided under Section 58 of the

Maharashtra Stamp Act. To support this submission, Advocate for the

petitioner has relied on the provisions of Section 35 of the Maharashtra Stamp

Act and the judgment given by the Hon'ble Supreme Court in the case of Javer

Chand and Ors. V/s. Pukhraj Surana (supra).

6. Section 35 of the Maharashtra Stamp Act reads as follows:

"35. 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 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

Section 35 of the Maharashtra Stamp Act is pari materia to Section

36 of the Indian Stamp Act, 1899. In the judgment given in the case of Javer

Chand and Ors. V/s. Pukhraj Surana (supra) the Hon'ble Supreme Court has

interpreted Section 36 of the Stamp Act 1899 as follows:

"4. .....In our opinion, the High Court misdirected itself, in its view of the provisions of S.36 of the Stamp Act. Section 36 is in these terms:

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"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."

That 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. The only exception recognized by the section is the class of cases contemplated by S.61 which is not material to the present controversy. 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 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. The record in this case discloses the fact that the hundis were marked as Exs.P.1 and P.2 and bear the endorsement 'admitted in evidence' under the signature of the Court. It is not, therefore, one of those cases where a document has been inadvertently admitted, without the Court applying its mind to the question of its admissibility. Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S.36 of the Stamp Act 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."

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Section 35 of the Maharashtra Stamp Act, 1899 is pari materia to

Section 36 of the Maharashtra Stamp Act, 1899 and it has to be interpreted in

the same manner, as above. Considering the facts of the case recorded earlier,

that the documents in question are produced, exhibited, referred in the

evidence of the plaintiff and confronted in the cross-examination of the plaintiff

and in view of the proposition of law laid down in the judgment given in the

case of Javer Chand and Ors. V/s. Pukhraj Surana (supra), it has to be held that

the trial Court could not have re-considered the issue.

7. The Advocate for the respondents / defendants has submitted that

the plaintiff is relying on the above documents to substantiate his claim

including the claim for decree of possession and, therefore, the trial Court has

rightly directed the plaintiff to take steps for impounding of the documents.

Relying on the judgment given in the case of Shalimar Chemical Works Limited

V/s. Surendra Oil and Dal Mills (Refineries) and others reported in 2010(8) SCC

423 it is argued that the trial Court can direct the impounding of the document

even at a subsequent stage and it is not necessary that the objection in that

regard is required to be taken at the first instance and in any case, immediately

at the time when the document is admitted / exhibited.

Relying on the judgment given by this Court in the case of Deepak

Corporation, Bombay V/s. Pushpa Prahlad Nanderjog reported in 1995 (1)

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Mh.L.J.489 it is submitted that Section 33 of the Maharashtra Stamp Act casts

a duty on the Court to consider the issue of inadequacy of stamp duty paid on

the document in question and if a document is produced before Court and it is

found to be inadequately stamped, the Court is bound to direct impounding of

the document.

The learned Advocate for the respondents / defendants relying on

the provisions of Section 58(2) of the Maharashtra Stamp Act have submitted

that the Court can re-consider the issue of determination of stamp duty on the

document in question if it subsequently finds that the document should have

been admitted in evidence with payment of duty and penalty as per Section 34

of the Maharashtra Stamp Act.

8. The submission made on behalf of the respondents / defendants,

relying on the provisions of Section 58(2) of the Maharashtra Stamp Act is

misdirected.

Section 58(1) of the Maharashtra Stamp Act lays down that if any

Court exercising its civil or revenue jurisdiction or any Criminal Court in a

proceeding under Chapter 9 or Part D of Chapter X of the Criminal Procedure

Code, 1973 makes an order admitting any instrument in evidence as duly

stamped or as not requiring a stamp, or upon payment of duty and penalty

under Section 34, the Court to which appeal lies or reference is made by the

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first-mentioned Court, the Appellate Court or the Court to which reference is

made can take the order of first-mentioned Court into consideration.

Section 58(2) of the Maharashtra Stamp Act lays down that such

Court to which reference is made, is of the opinion that the instrument should

not have been admitted in evidence without payment of duty and penalty

under Section 34, or without payment of a higher duty and penalty than those

paid, that Court i.e. the Appellate Court or the Court to which reference is

made may record declaration to that effect and determine the amount of duty

with which such instrument is chargeable and may further pass orders as

mentioned in Clause (i) and (ii) of Sub-section (2) of Section 58 of the

Maharashtra Stamp Act. The term "if such Court" in Sub-section (2) of Section

58 of the Maharashtra Stamp Act refers to the Appellate Court or the Court to

which the reference is made by the Court of first instance as mentioned in Sub-

section (1) to Section 58 of the Maharashtra Stamp Act. Section 58(2) of the

Maharashtra Stamp Act does not enable the Court of first instance to reconsider

its order regarding admission of any instrument in evidence.

9. The judgment given in the case of Shalimar Chemical Works Limited

V/s. Surendra Oil and Dal Mills (Refineries) and others (supra) considers the

admissibility of additional evidence at the appellate stage under Order 41 Rule

27 of the Code of Civil Procedure. It does not deal with the point which arises

for consideration in the present matter. Similarly, in the judgment given in the

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case of Deepak Corporation, Bombay V/s. Pushpa Prahlad Nanderjog (supra)

this Court considered the scope and power of the Court to take action under

Section 33 of the Maharashtra Stamp Act. This judgment also does not assist

the respondents.

10. In view of the above, I find that the trial Court has failed to consider

the matter in the right perspective and because of it the impugned orders are

unsustainable.

Hence, the following order:

(i)                    The impugned orders are set aside.

(ii)                   The application (Exh. No.211) is allowed.

(iii)                  The application (Exh. No.208) is dismissed.

(iv)                   It is clarified that this judgment will not foreclose the submissions /

challenges of the defendants relying on the provisions of Section 58 of the

Maharashtra Stamp Act and the defendants will be at liberty to raise the

challenges before the Appellate Court at appropriate stage and in appropriate

proceedings, if so advised.

Rule is made absolute in the above terms.

In the circumstances, the parties to bear their own costs.

JUDGE Tambaskar.