Cheemarla Venkataiah vs Yahya Bahamed
2024 Latest Caselaw 2847 Tel

Telangana High Court

Cheemarla Venkataiah vs Yahya Bahamed on 26 July, 2024

     THE HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

             Civil Revision Petition No.1117 OF 2024

ORDER:

Aggrieved by the docket order dated 29.02.2024 in

O.S.No.81 of 2022 (hereinafter will be referred as 'impugned

order') passed by the learned Senior Civil Judge, Kalwakurthy

(hereinafter will be referred as 'Trial Court'), the defendants

have preferred the present Civil Revision Petition to set aside

the impugned order.

2. For the sake of convenience, the parties hereinafter are

referred to as they are arrayed before the Trial Court.

3. The brief facts of the case, which necessitated the revision

petitioners to file the present revision, are that the plaintiffs

have filed a suit for specific performance of agreement of sale,

dated 14.05.2008 against the defendants. During the course of

trial, the plaintiff got examined as PW1 and got marked Exs.A1

to A7. While marking a document i.e., declaration cum receipt,

the counsel for the defendants have raised an objection that the

said declaration cum receipt cannot be marked as it requires

stamp duty and penalty to that effect and that the plaintiffs

have created the said document. The trial Court has passed the

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impugned docket order dated 29.02.2024 marking the said

document as Ex.A8 on behalf of plaintiffs. Aggrieved by the

same, the defendants have filed the present Civil Revision

Petition to set aside the impugned document order.

4. Heard both sides and perused the record including the

grounds of revision.

5. The contention of the defendants is that the learned trial

Court without referring the written arguments filed by the

defendants in a proper perspective and erroneously construed

the disputed document dated 10.03.2017 as declaration cum

receipt and also proposed to mark the document as Ex.A8 in

the suit filed by the plaintiffs for specific performance. It is

further contended that learned trial Court ought to have

appreciated that the suit for specific performance was filed in

March, 2020 based on alleged agreement of sale dated

14.05.2008 i.e., after twelve years from the date of alleged

agreement of sale. It is to be seen that the limited issue

involved in this revision is whether the alleged declaration cum

receipt, which was proposed to be marked as Ex.A8 before the

trial Court, can be permitted or not. The trial Court has passed

a lengthy docket order, which forms part of the submissions

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made by both the parties before the trial Court. As can be seen

from the first paragraph of the impugned docket order, it is very

clear that the learned counsel for the defendants have raised

several objections to mark the alleged declaration cum receipt

as one of the documents. Thus, whenever objections are raised

by either of the parties while marking a document or proposing

to mark a document, a duty is cast on the learned trial Court

Judge to mark the said document subject to objection until and

unless such objections are unsustainable.

6. Admission of a document in evidence is different from

proof of its contents. Order XIII Rules 32 and 43 of the Code of

Civil Procedure, 1908 provide rules for admission or rejection of

documents. The Court may at any stage of the case reject any

document which it considers irrelevant or otherwise

inadmissible, recording the grounds of such rejection. While

reading the record, the parties and the court should be able to

know as to which document was placed before the witness while

he/she is deposing. Absence of putting an endorsement for the

purpose of identification no sooner a document is placed before

a witness would cause serious confusion as one would be left

simply guessing or wondering which was the document to

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which the witness was referring to which he is deposing.

Endorsement of an exhibit number on a document has no

relation with its proof. Neither the marking of an exhibit

number can be postponed till the document has been held

proved; nor can the document be held to have been proved

merely because it has been marked as an exhibit.

7. 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. Parties

to 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. In

the case on hand, the defendants have raised objection that the

disputed document cannot be marked as it not sufficiently

stamped and that the said document is a created document.

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8. Ordinarily, an objection to the admissibility of evidence

should be taken when it is tendered and not subsequently.

Admittedly, the objection is with regard to the admissibility of

document. Merely because a document has been marked as "an

exhibit", an objection as to its admissibility is not excluded and

is available to be raised even at a later stage or even in appeal

or revision. The crucial test is whether an objection, if taken at

the appropriate point of time, would have enabled the party

tendering the evidence to cure the defect and resort to such

mode of proof as would be regular. A prompt objection does not

prejudice the party tendering the evidence, for two reasons:

firstly, it enables the court to apply its mind and pronounce its

decision on the question of admissibility then and there; and

secondly, in the event of finding of the court on the mode of

proof sought to be adopted going against the party tendering the

evidence, the opportunity of seeking indulgence of the court for

permitting a regular mode or method of proof and thereby

removing the objection raised by the opposite party, is available

to the party leading the evidence. Such practice and procedure

is fair to both parties. Whenever an objection is raised during

evidence taking stage regarding the admissibility of any material

or item of oral evidence the trial court can make a note of such

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objection and mark the objected document tentatively as an

exhibit in the case (or record the objected part of the oral

evidence) subject to such objections to be decided at the last

stage in the final judgment. If the court finds at the final stage

that the objection so raised is sustainable the Judge or

Magistrate can keep such evidence excluded from

consideration.

9. It is the specific contention of the defendants that the

learned trial Court Judge ought to have appreciated that the

disputed document dated 10.03.2017 which is made on

Rs.100/- stamp paper, comes within the meaning and scope of

Section 49A (b) of Schedule - IA of Indian Stamp Act, 1899 and

requires payment of stamp duty being a settlement deed and in

the absence of payment of deficit stamp duty the same ought

not to have been allowed to be received and marked as evidence

by the trial Court. It is further contention of the defendants that

the finding of the learned trial Court that the document as

declaration cum receipt not only comes within the meaning of

Section 214 of the Indian Stamp Act, 1899 (being an

instrument) and also chargeable under Section 6 of the said Act

and in the absence of not duly stamped as required under

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Section 2 (11) of the Act unless the same is impounded as per

the mandatory requirement of Sections 33 and 38 of the Act.

The trial Court has passed the impugned docket order by

relying upon the decision of High Court of Andhra Pradesh in B.

Bhaskar Reddy v. Bommireddy Pattabhi Rami Reddy (died)

per LRs and others 1, wherein it was held that wherever the

agreement holder is not in possession of the property under

agreement of sale, even though there is a recital in the

agreement as to delivery of possession, he need not pay proper

stamp duty as required.

10. As can be seen from the contents of the disputed

document, which is titled as 'declaration cum receipt', certain

rights and liabilities are being created in favour of the parties in

respect of suit schedule property. Though the disputed

document is appearing to be a receipt, in the initial paragraph a

declaration was alleged to have been made that the suit

schedule property was sold. The disputed document is

depicting the details with regard to entering of agreement of sale

between the parties in respect of suit schedule property,

payment of advance sale consideration on few occasions and a

1 2010 (6) ALD 307

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declaration that the property is sold and that the registration

will be done after receiving balance sale consideration. Though

the plaintiff is contending that possession was not delivered, the

disputed document is silent about that aspect, however, the

declaration that the property was sold is creating any amount of

ambiguity. Since there is a declaration in the disputed

document that the suit schedule property is sold and

considerable sale consideration was alleged to have been paid,

certain rights and liabilities are created on respective parties.

11. In Lalbabu Ansari v. Lmm International and others 2

the High Court of Calcutta observed as under:

"Admittedly, the receipt dated September 26, 2003 was not duly stamped but it creates the rights and liabilities between the parties. Under such circumstances, I am of the view that the decision 1999 (2) CLJ 259 and (2002) 2 WBLR (Cal) 440 are very much applicable in the instant case. Though Mr. Bidyut Banerjee has referred to this decision of (2002) 2 WBLR (Cal) 440 in support of his contention but ultimately the Hon'ble Single Judge has observed in the last part of the paragraph 8 and the paragraph 13 that the receipt can be termed as instrument and / or agreement for sale for the purpose of specific performance of contract."

12. Furthermore, though the learned trial Court Judge has

incorporated in the impugned docket order with regard to the

contention of the plaintiffs that they need not pay any stamp,

2 (2010) 09 CAL CK 0061

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the learned trial Court Judge has not expressed any opinion as

to whether the document requires to be impounded or not. The

disputed document is appearing to be a settlement deed.

Failure to pay the required stamp duty can render a document

non -binding and may lead to legal complications in the future.

Once the stamp duty is paid and the document is sufficiently

stamped, it becomes a legally binding contract between the

parties involved.

13. The learned counsel for the revision petitioners/

defendants contended that learned trial Court ought to have

appreciated that the disputed document is only created and

manipulated to overcome the maintainability of the suit even

after getting execution of registered sale deed dated 21.05.2009

in pursuance of the alleged agreement of sale dated 14.05.2008

without there being any cause of action and the suit was filed

after 12 long years from the date of agreement. Whether the

suit filed is within the prescribed limitation and whether the

document is forged or fabricated are the questions, which are

nothing but merits of the case that have to be decided by the

trial Court after conclusion of trial but not at this stage.

Moreover, even for the sake of arguments, if the above

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contention of the revision petitioners/defendants is accepted as

true, then the very purpose of impounding and paying stamp

fee for a manipulated and created document becomes a futile

exercise. However, the limited scope in this revision is whether

the impugned docket order passed by the learned trial Court

with regard to the admissibility of document is in proper

perspective or not.

14. In D. Sujata and another v. Revoori Vasantha and

another 3 the Hon'ble High Court of Andhra Pradesh held that

Section 36 of the Stamp Act mandates that once an instrument

has been admitted in evidence, the admissibility thereof cannot

be called in question, except before an Appellate Court, as

provided for under Section 61 of the said Act. It is further held

that unless and until there is a judicial determination, it cannot

be said that the document has been admitted in evidence,

though it is marked. Mere marking of the document itself is not

sufficient and there should be judicial determination as to the

nature of the document and its admissibility. Further, the

words 'admitted in evidence' appearing in Section 36 of the

Stamp Act means 'admitted after judicial consideration of the

3 2005 (4) ALT 626

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circumstances relating to the admissibility'. There shall be a

judicial determination of the question whether the document

can be admitted in evidence or not for want of stamp duty, non-

registration etc.

15. In a decision reported in Trinadh Patro v. Lingaraj

Rana 4 the High Court for the erstwhile State of Andhra Pradesh

has succinctly explained the distinction between the concepts of

'admissibility' and 'relevancy' by holding that they are separate

and different. It is held that 'admissibility' and 'relevancy' are

two tests for judicial approval of the evidence tendered by a

party. In respect of documentary evidence also the Court shall

apply these two tests before admitting the document into

evidence. Admissibility of a document in evidence means the

admissibility under the provisions of Indian Evidence Act and

also other enactments such as Indian Stamp Act, Registration

Act etc. So, before approving a document for evidence, the Court

has to apply its judicial consideration as to whether the

document produced is hit by any of the provisions of Indian

Evidence Act or other laws. It is only when the document is not

hit by provisions of any such enactments the Court shall admit

4 2015 (6) ALD 617

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the same in evidence. Then, so far as relevancy of the evidence

is concerned, it is held in this decision that the evidence

produced by a party shall pass the test of relevancy applied

under Sections 5 to 55 of Indian Evidence Act i.e. the evidence

must be relevant to the fact in issue in one of the ways

prescribed under Sections 5 to 55 of the Evidence Act. Thus, it

is to be noticed that admissibility and relevancy are two

different concepts altogether. In view of the aforesaid legal

exposition of law, the factual matrix of the present case would

demonstrate that the trial Court has not judicially determined

the probative value of the documents in question with reference

to the substantive laws. It is legally deemed that those

documents are only tentatively proposed to be received in

evidence but not "admitted in evidence" and as such, all legal

and tenable objections relating to their admissibility and

probative value can be raised by these revision petitioners/

defendants at an appropriate stage in the suit.

16. The learned counsel for the revision petitioners/

defendants submitted that the disputed document has already

been marked but as can be seen from the impugned docket

order, by way of impugned docket order, the trial Court Judge

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has adjourned the matter for marking the disputed document.

Thus, it appears that the trial Court Judge is proposing to mark

the said document on the next date of adjournment. Hence, the

document proposed to be received in evidence subject to

objections to be raised by the revision petitioners/defendants.

The learned trial Court shall consider all the objections raised

by the revision petitioners/defendants with reference to the

disputed document and shall decide the same according to law

at an appropriate stage in the suit.

17. In M/s. Z Engineers Construction Private Limited v.

Bipin Bihari Behera 5 the Honourable Supreme Court observed

as under:

"During the course of trial, the trial court had chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised. This Court found that it is an archaic practice that whenever any objection is raised regarding the admissibility of any material in evidence, the Court does not proceed further without passing an order on such objection. This Court found that any decision on objection is challenged in appeal or revision which unnecessarily prolongs the trial. Such practices proved to be hindrance which impede and restrict the progress of trial proceedings. Such proceedings must be recast and remodeled to give way to the acceleration of trial proceedings. It is thereafter, the Court held as under:

"14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected

5 (2020) 02 SC CK 0044

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document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)"

11. We find that the trial court as well as the High Court returned the findings on the bare reading of the power of attorney and observed that since it is a registered document, therefore, it is properly stamped. But the question as to whether in terms of the explanation inserted by the Orissa Act, such power of attorney is liable to be stamped as conveyance, on account of the delivery of possession at the time of execution of power of attorney or thereafter has not been examined.

12. We find that the question whether possession was transferred at the time or after execution of such power of attorney is a question of fact which is required to be decided by the Court at the time of final decision being adjudicated, after evidence is led by the parties and not merely on the basis of recitals in the power of attorney. Such process would be fair and reasonable keeping in view the provisions of Orissa Act.

13. We find that in the facts of the present case, the objection related to deficiency in stamp duty on a power of attorney which the appellants claim to be conveyance, depends upon the finding regarding delivery of possession in terms of the power of attorney. Generally speaking, such objection is required to be decided before proceeding further. However, in a case where evidence is required to determine the nature of the document, it is reasonable to defer the admissibility of a document for insufficient stamp duty at the time of final decision in the suit.

14. Therefore, we find that the order passed by the trial court on 14 th December, 2018 and the High Court on 24th January, 2019 are liable to be set aside and are, thus, set aside. The matter is remitted to the trial court to decide the objection of admissibility of the document on account of being insufficiently stamped in light of the findings recorded, after evidence is led by the parties. The application dated 3rd September, 2018 filed by the appellants shall be decided along with the main suit, when the question of delivery of possession at the time of the execution of the power of attorney or thereafter shall be determined."

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18. Even in the case on hand, the plaintiffs are contending

that the possession in respect of suit schedule property was not

delivered to them and on the other hand, the defendants are

contending that the said document is forged and created

document. Though the defendants contended that the

document is forged and created, no steps were initiated by the

defendants to establish the same. Thus, there is lot of

ambiguity as to whether possession in respect of suit schedule

property was delivered or not and whether the document was

created or fabricated etc and thereby the nature of the

document is also appearing to be unclear. Thus, considering

the principle laid down in the above said decision, this

ambiguity can only be cleared only after evidence is adduced on

behalf of both the sides. Furthermore, as stated supra, though

the disputed document is titled as declaration cum receipt,

certain aspects like the nature of the document and whether

such document is required to be sufficiently stamped or not,

can be decided after trial and prior to passing the final

judgment. In such circumstances, where evidence is required

to determine the nature of the document, it is reasonable to

defer the admissibility of a document for insufficient stamp duty

at the time of final decision in the suit.

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19. With the above observations, this Civil Revision Petition is

disposed of. The learned trial Court shall defer the admissibility

of the disputed document for insufficient stamp duty and also

the genuineness of the said document till final decision in the

suit. In the meanwhile, the trial Court shall mark the disputed

document subject to objections raised or to be raised by the

defendants. Further, the trial Court shall proceed with the case

on merits uninfluenced by any of the remarks or observations

made by this Court in this order. There shall be no order as to

costs.

As a sequel, pending miscellaneous applications, if any,

shall stand closed.

_______________________________ JUSTICE M.G. PRIYADARSINI Date: 26.07.2024 Note: LR Copy to be marked.

B/o. AS