Mr. Venu Gopal Baldawa vs Mrs. Reddy Saritha Reddy
2023 Latest Caselaw 1819 Tel

     THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
         CIVIL REVISION PETITION NO.3005 OF 2019
ORDER:

This Civil Revision Petition is filed under Article 227 of

Constitution of India challenging the Order dated 01.08.2019 in

I.A.No.248 of 2019 in O.S.No.83 of 2015 passed by the Judge-

Family Court-cum-VII Additional District Judge, Medak at

Sangareddy wherein the said application filed by the

respondent/defendant under Order XIII Rule 3 read with Section

151 of the Code of Civil Procedure (for short C.P.C.) to de-exhibit

Exs.A2 to A13 on the ground that they are compulsorily

registrable documents and required stamp duty and penalty,

was allowed.

2. Feeling aggrieved and dissatisfied with the said order, the

plaintiffs filed this civil revision petition alleging that the trial Court

committed error in de-exhibiting the documents Exs.A2 to A13

and the same is against the provisions of Section 36 r/w Section

61 of the Indian Stamp Act. The trial Court has not properly

considered the documents in question as the suit documents

and that the receipts do not require any registration. The order

of the trial Court is arbitrary and against the principles of law and

requested to set aside the impugned orders.

3. Heard learned counsel for the revision petitioners/plaintiffs

and respondent/defendant.

4. Perused the material available on record. The submissions

made by both the counsel have been received due

consideration of this Court.

5. For the sake of convenience, the parties are herein after

referred to as plaintiffs and defendant, as arrayed in the suit.

6. The plaintiffs have filed in O.S.No.83 of 2015 for recovery of

money of an amount of Rs.61,25,000/- due on mortgage and

sale of mortgage property. After settlement of issues, the

plaintiffs filed chief affidavits of PW1 and PW2. Through PW-1, the

plaintiffs got marked registered mortgage deed as Ex.A-1 and

supplementary deeds as Exs.A2, A4, A6, A8, A10 and A12 and

receipts Exs.A3, A5, A7, A9, A11 and A13.

7. When the matter was coming up for cross-examination of

PWs.1 and 2, the defendant filed the present petition under

Order XIII Rule 3 C.P.C. to de-exhibit the said documents on the

ground that they are not registered and require stamp duty and

penalty. The said application was considered by the trial Court

and Exs.A2 to A13 were de-exhibited, as they are compulsorily

registrable documents and requires stamp duty and penalty.

8. The learned counsel for the petitioners submitted that the

order impugned is against the principles of law and liable to be

set aside. The learned counsel further submitted that the trial

Court has arrived at a wrong conclusion based on the judgment

of this Court in A.P.Laly Vs. Gurram Rama Rao1 and de-exhibited

the documents Exs.A2 to A13 vide impugned orders. The learned

counsel for the petitioners submitted that the impugned order is

contrary to the judgments rendered by the Hon'ble Supreme

Court in Javer Chand and others Vs. Pukhraj Surana2. He

submitted that the impugned order suffers from infirmities and

prayed to set aside the same. The learned counsel has placed

reliance on the following judgments:-

I) JAVER CHAND AND OTHERS V. PUKHRAJ SURANA3 II) SHYAMAL KUMAR ROY V. SUSHIL KUMAR AGARWAL4 III) M.A.RAJU V. KRISHNAMURTHY BHATT5 IV) HEMENDRA V. SUBODH6 V) ISRA FATIMA V. BISMILLAH BEGUM AND ANOTHER7 VI) ORDER OF HON'BLE JUSTICE A.RAMALINGESWARA RAO8 VII) BOGGAVARAPU NARASIMHULU V. SRIRAM RAMANAIAH AND OTHERS9 VIII) SOUTH CENTRAL RAILWAY EMPLOYEES CO-OP. CREDIT SOCIETY EMPLOYEES UNION V. B.YASHODABAD10

2 AIR 1961 SC 1655 3 AIR 1961 SC 1655.

4 AIR 2007 SC 637 5 AIR 1976 Gujarat 72 6 (2008(6) Mh.L.J.

7 2002 (5) ALD 660 8 C.R.P.NO.1873 OF 2017, DT.19.09.2017 9 2014 (2) ALD 426 10 LAW(SC) 2014 12 16

IX) SUGANTHI SURESH KUMAR V. JAGDEESHAN11 X) RAJASTHAN PUBLIC SERVICE COMMISSION AND ANOTHER V. HARISH KUMAR PUROHIT AND OTHERS. STATE OF RAJASTHAN V. KISHANLALA BANSHAL AND ANOTHER12 XI) SANT LAL GUPTA AND OTHERS V. MODERN CO-OPERATIVE GROUP HOUSING SOCIETY LTD. AND OTHERS13 XII) STATE OF ORISSA AND OTHERS V. MD.ILLIYAS14 XIII) MATTAPAALLI CHELAMAYYA (DEAD) BY HIS LEGAL REPRESENTATIVES AND ANOTHER15 XIV) THE LAND ACQUISITION OFFICER, VIJAYWADA THERMAL STATION V. NUTALAPATI VENKATA RAO16

9. Per contra, the learned counsel for the

respondent/defendant submitted that the trial Court has rightly

de-exhibited the documents Exs.A2 to A13, as they require

registration and stamp duty. He has submitted that the plaintiffs

filed chief affidavits of PW1 and PW2 and through PW-1, the

documents Exs.A1 to A13 were marked and when the matter

came up for cross-examination, it was noticed that the said

documents require registration and stamp duty and the trial

Court has properly examined the objections raised by him and

de-exhibited the documents Exs.A2 to A13. He further submitted

that there are no grounds to interfere with the order impugned.

The learned counsel placed reliance on the following decisions:-

11 AIR 2002 SC 621 12 2003(3) Scale 571 13 2010 AIR SCW 7184 14 AIR 2006 SC 258 15 AIR 1972 SC 1121 16 AIR 1991 Andhra Pradesh 31 Full Bench

I) SHYAMAL KUMAR ROY V. SUSHIL KUMAR AGARWAL17

II) SIRIKONDA MADHAVA RAO V. N.HEMALATHA AND OTHERS18

III) SYED YOUSUF ALI V. MOHD. YOUSUF AND OTHERS19

IV) SRINIVASA BUILDERS V. A.JANGA REDDY20

V) S.MOHAN KRISHNA V. V.VARALAKSHMAMMA AND OTHERS21

VI) VEMI REDDY KOTA REDDY V. VEMI REDDY PRABHAKAR REDDY22

10. In view of the rival contentions, the following points arise

for consideration of this Court:-

i) Whether the documents Exs.A2 to A13 taken on record in examination-in-chief of PW-1 could be de-exhibited under Order 13 Rule 3 C.P.C.?

ii) Whether the order impugned de-exhibiting Exs.A2 to A13 i.e., supplementary mortgage deeds and receipts, is sustainable?

11. The plaintiffs filed the suit for passing preliminary mortgage

decree for an amount of Rs.61,25,000/-. It is stated that the

defendant borrowed a sum of Rs.20,00,000/- by mortgaging the

suit schedule property and executed registered mortgage deed

dated 03.01.2014. Subsequently, again the defendant borrowed

additional sum of Rs.15,00,000/- from each of the plaintiffs on

17 2007 1 ALD(SC) 38 18 Civil Revision Petition No.979 of 2021 19 2016 (2) ALT 557 20 2016(2) ALT 321 21 2017(5) ALT 264 22 2004 (3) ALD 187

04.01.2014 and had executed three supplementary mortgage

deeds in favour of plaintiff No.1 and three supplementary

Mortgage Deeds in favour of the second plaintiff and also

executed separate receipts in token of the said amount of

Rs.50,00,000/- in favour of plaintiff Nos.1 and 2.

12. After settlement of issues, plaintiff Nos.1 and 2 filed chief

affidavits. Through PW-1, the plaintiffs got marked registered

mortgage deed as Ex.A1 and supplementary mortgage deeds

as Exs.A2, A4, A6, A8, A10 and A12 and the receipts as Exs.A3,

A5, A7, A9, A11 and A13. The defendant filed I.A.No.248 of 2019

under Order XIII Rule 3 C.P.C. to de-exhibit Exs.A2 to A13 and

under the order impugned, they were de-exhibited.

13. The first contention of the learned counsel for the revision

petitioners is that the trial Court has committed error in relying on

the decision of this Court in A.P.Laly Vs. Gurram Rama Rao

(1 supra) as the said decision is contrary to the decision of the

Hon'ble Supreme Court in Javer Chand and others Vs. Pukhraj

Surana(2 supra).

14. In Javer Chand's case (2 supra), the Hon'ble Supreme

Court held that the document as tendered which was not

properly stamped, objection was raised as to admissibility

thereof. The Hon'ble Supreme Court held that the question has

to be decided there and then when the document is tendered

in evidence. It was further held that once the court rightly or

wrongly decides to admit the document in evidence, the matter

is closed so far as the parties are concerned. It was held that the

Court has to determine the matter judiciously as soon as the

document is tendered in evidence and before it is marked as

exhibit in the case.

15. The decision of the Hon'ble Supreme Court in Javer

Chand's case(supra) was decided on the interpretation of

provisions of Section 35 and 36 of Stamp Act. Section 35 of the

Indian Stamp Act (for short 'the Act') prohibits reception of

improperly stamped documents in evidence and Section 36 bars

raising an objection of admitted documents except under

Section 61 of the Act. Whereas Order 13 of the C.P.C. provides

for protection, impounding and return of documents. Rule 3 of

Order XIII C.P.C., empowers the Court to reject any document

which it considers irrelevant or otherwise inadmissible. The

procedure contained in CPC governs these Rules.

16. In the light of these provisions, the trial Court had rightly

relied on the decision in A.P.Laly's case (1 supra) and also rightly

distinguished the decision of Javer Chand's case (2 supra).

17. In Syed Yousuf Ali's case(19 supra), at paragraph No.32,

this Court has observed as under:-

"A co-joint reading of Section 36 of Indian Stamp Act and order XII Rule 3 of CPC, there is little conflict as to rejection of any document which is already marked on the ground that the document is irrelevant or inadmissible in evidence after recording reasons. If really the bar contained in Section 36 is absolute which precludes the Court to entertain any objection as to admissibility at any subsequent stage, after the document is marked in evidence, Order XIII Rule 3 become redundant. When Court did not determine judicially as to admissibility of possessory contract of sale and marked the same as Exhibit, without applying its mind, the admissibility of document can be decided judicially and reject if the Court find that the document is inadmissible in evidence or reject the document at any stage of the proceedings."

18. In Srinivasa Builders' case (20 supra), at paragraph No.14,

this Court has observed as under:-

"If one reads Rule 3 of Order 13 CPC along with Section 61 of the Indian Stamp Act, which is an exception to Section 36, it is clear that the matter regarding admissibility of improperly stamped document does not become final on receiving the said document in evidence. The original Court on its own or at the instance of the objector or by the appellate or revisional Court can review the decision of admissibility of such document."

19. It is settled principle of law that Order 13 Rule 3 C.P.C.

deals with power of the Court to reject the irrelevant documents

at any stage if it considers irrelevant or otherwise inadmissible.

Thus, the trial Court is competent to reject the said documents

even if the document is appearing in evidence and marked as

exhibit.

20. In Vemi Reddy Kota Reddy's case(22 supra) this Court

observed that when the documents are marked as exhibits in the

absence of defendant's counsel and without considering the

nature of the document, assigning exhibit number cannot be

said to have been admitted in the evidence and ascontained in

Section 36 of Stamp Act would not come to the aid of the party

in whose evidence the document was marked as exhibit without

any judicial determination, totally debarring the adversal to

challenge the admissibility of the documents in evidence.

21. In the present case, the trial Court received the

documents along with chief affidavit of PW-1 and marked the

documents as Exs. A2 to A13. However, supplementary deeds

Exs.A2, A4, A6, A8, A10 and A12 require registration and receipts

Exs.A3, A5, A7, A9, A11 and A13 are subject to stamp duty. The

said exhibits which were tendered in evidence affidavit of

plaintiffs were deemed to be formally approved. As held by the

Hon'ble Supreme Court in Javer Chand's case(2 supra), the

Court has to judiciously determine the matter as soon as the

document is tendered in evidence before it is marked as an

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exhibit. Apparently, the record discloses that there is no judicial

recognition with regard to admissibility of the documents Exs.A2

to A13 which were tendered by the plaintiffs along with the

affidavits in the form of chief examination. Therefore, it cannot

be said that the documents Exs.A2 to A13 are admitted in

evidence, merely because they are marked.

22. For the above reasons, I am of the view that Exs.A2 to A13

were marked mechanically though there was no judicial

determination of the admissibility of the said documents as

required by law.

23. It is clear that the question of admissibility of the

documents Exs.A2 to A13 are not at all decided. Therefore, the

objection of the defendant for filing an application under Order

13 Rule 3 C.P.C., was rightly considered the documents Exs.A2 to

A13 were rightly de-exhibited vide the impugned order.

Therefore, the order passed by the trial Court de-exhibiting the

documents as they are subject to registration and stamp duty is

in accordance with law. When such order is passed by the

Courts to protect the revenue of the State, exercising the power

under fiscal enactment i.e., Stamp Act, cannot be interfered

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with by exercising the power under Article 227 of Constitution of

India.

24. In view of my foregoing discussion, I find that de-exhibiting

of the documents Exs.A2 to A13 by the trial Court as they are

subject to registration and stamp duty is in accordance with law

and the same does not call for any interference by this Court.

Consequently, this civil revision petition is liable to be dismissed as

it is devoid of merits.

25. Accordingly, civil revision petition is dismissed. No costs.

26. Pending miscellaneous applications, if any, shall stand

closed.

___________________________ JUSTICE A.SANTHOSH REDDY

27-04-2023 sa