AI Structured Summary
Not yet generated for this judgment
Judgment
The present revision petition is filed being aggrieved by the order dated 08.02.2022 made in I.A.No.204 of 2021 in O.S.No.190 of 2009 on the file of the II Additional Junior Civil Judge cum Judicial Magistrate of First Class, Warangal, whereunder, the said petition was dismissed.
The petitioners herein are defendants in O.S.No.190 of 2009. The brief facts of the case are that the said suit was filed under Section 26 read with Order VII Rule 1 of the Civil Procedure Code (for short ‘C.P.C’) seeking permanent injunction over the suit schedule property. In the said suit, the defendants filed I.A.No.204 of 2021 under Order XIII Rule 3 read with Section 151 of C.P.C., praying to de-exhibit Ex.A1 i.e., unregistered sale agreement and to remove the same from the Court records stating that as per the provisions of Section 17 of the Indian Registration Act, 1908 (for short ‘Act, 1908’) any document through which possession can be delivered has to be a registered one but the Ex.A1 is not a registered document though the possession is said to have been conveyed by the donor of plaintiff. Therefore, prayed to de-exhibit Ex.A1.
On behalf of the respondent/plaintiff, a counter affidavit was filed in I.A.No.204 of 2021 stating that the petition is neither maintainable on facts, nor on law, as Ex.A1 was marked on 30.08.2011 in the presence of counsel appearing for petitioners/defendants and at that time no objection was raised on their behalf as it is duly impounded. It was stated that the existence of Ex.A1 is also mentioned in Ex.A2 i.e., the registered gift settlement deed dated 30.03.2003. It was contended that Ex.A1 was also sent for expert opinion, according to which the signature of father of defendant No.1 tailed with the signatures appearing on the acquaintance register of father of deceased defendant No.1. Therefore, prayed this Court to dismiss the petition.
On hearing the submissions made by both sides, the trial Court dismissed I.A.No.204 of 2021 observing that even though Ex.A1 is an unregistered document, it can be taken into evidence by the respondent/plaintiff for collateral purpose, therefore, de-exhibiting the document is not proper.
Aggrieved thereby, this revision petition is filed stating that Ex.A1 cannot be looked into even for collateral purpose as any document through which possession can be delivered has to be a registered one and the Ex.A1 being an unregistered document, the same is inadmissible in law and needs to be de-exhibited.
Heard Sri S.Surender Reddy, learned counsel for petitioners, and Sri K.V.Bhanu Prasad, learned counsel for respondents.
Learned counsel for petitioners submitted that the petition filed to de-exhibit Ex.A1 is erroneously dismissed as the trial Court failed to appreciate the fact that Ex.A1 is an unregistered document and any document through which the possession can be delivered has to be a registered document, as such, the trial Court ought not to have marked the said unregistered document. Further, the trial Court ought to have seen that the petitioners raised substantial grounds and filed several citations to get the Ex.A1 de-exhibited, but the same were not considered. Therefore, by relying on the order passed by the High Court of Andhra Pradesh in Boggavarapu Narasimhulu Vs. Sriram Ramanaiah and Others 2013 SCC OnLine AP 328 prayed this Court to allow the revision petition, setting aside the order dated 08.02.2022 made in I.A.No.204 of 2021 in O.S.No.190 of 2009.
Per contra, learned counsel for respondents submitted that there are no infirmities in the order dated 08.02.2022 made in I.A.No.204 of 2021 in O.S.No.190 of 2009 dismissing the petition filed to de-exhibit Ex.A1. He stated that though the counsel appearing for petitioners herein was present when the document was marked, no objection was raised at that time with regard to registration of Ex.A1. He asserted that the Ex.A1 was even referred in Ex.A2 and in fact, basing on Ex.A1 the trial Court granted interim injunction order in favour of his clients. Therefore, contended that praying to de-exhibit Ex.A1 at this stage cannot be entertained, as such, prayed the Court to dismiss the revision petition.
Having regard to the rival submissions made and on considering the material available on record, it is noted that the specific contention of learned counsel for petitioners is that any document through which possession can be delivered has to be a registered document, whereas, admittedly, Ex.A1 is an unregistered document and the possession was also delivered through the said document. It is also noted that Ex.A1 was impounded for stamp duty and the same was validated by paying the required stamp duty.
For the sake of convenience, the relevant paragraph No.5 of the order passed in Boggavarapu (supra) is extracted hereunder:
“5. (a) Now the important question is - ‘Whether the 2nd defendant can raise any objection in regard to the admissibility of the exhibit A1 on the ground that it has been not duly registered despite the fact that the said document has already been admitted in evidence and was in fact exhibited without any objection during the course of trial before the trial Court?’
(b) The learned counsel for the plaintiffs would contend that exhibit A1 was already exhibited and was admitted in evidence before the trial Court and that at the time of marking no objection was raised in regard to the issue of registration and, therefore, the 2nd defendant cannot now raise any objection in regard to the admissibility of the exhibit A1 on the ground that it has been not duly registered. He placed reliance on section 35 of the Indian Stamp Act which reads as under:.
“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”. He further submitted that once the document is admitted in evidence rightly or wrongly, with or without an objection, rejection of the same later by the Court is impermissible. He had also placed reliance on the ratio in the decision in the case of Javer Chand v. Pukhraj Surana (3rd supra). In this reported case the facts show that the hundis were marked as exhibits P.1 and P.2 and bare the endorsement ‘admitted in evidence’ under the signature of the Court. Having considered the said fact and other facts, the Hon'ble Supreme Court held as follows:“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 of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”
(c) However, on the same aspect the learned counsel for the respondent placed reliance on another decision of the Hon'ble Supreme Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple5 In this decision the Hon'ble Supreme Court having referred to an earlier decision cited held as follows:
“The learned counsel for the defendant-respondent has relied on ‘The Roman Catholic Mission v. The State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though-brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes : -
(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, 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. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. 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. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, 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 the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”
Following the precedential guidance which is binding it must be held that the contention of the petitioner/2nd defendant is having an acceptable merit.
(d) Further in the decision in the case of The Land Acquisition Officer, Vijayawada Thermal Station v. Nutalapati Venkata Rao6, a Full Bench of this Court held as follows:
“It is now well settled, by a long series of decisions of all Courts, to which it is unnecessary to refer, that there is a basic difference between the mode of proof of a document and its admissibility. The mode of proof of a document is a matter of procedure while its admissibility is a matter of substantive law, such as the Registration Act or the Stamp Act or other specific provision. If the objection is as to the admissibility of the document, then the mere making of the document as an exhibit, does not preclude any objection being raised later as to its admissibility. But so far as the mode of proof is concerned, it is well-settled that, if an objection as to the mode is not raised at the stage when the document is marked as evidence in the case under 0. 13, R. 4 C.P.C., such an objection cannot be raised at any subsequent stage.”
(e) In view of the binding ratios in the before mentioned two decisions supra, in the well considered view of this Court, the 2nd defendant can raise an objection in regard to the admissibility of the exhibit A1 on the ground that it has been not duly registered inspite of the fact that the said document has already been exhibited as exhibit A1 and is admitted in evidence during the course of trial before the Court below, as the said objection is as to admissibility of the document and is a matter of substantive law viz., the Registration Act. The trial Court failed to take note of the binding ratios in the decision of the Hon'ble Supreme Court and the Full Bench decision of this Court and had arrived at an incorrect conclusion to the effect that if a document is exhibited without any objection, the aggrieved party is precluded from raising an objection as to the admissibility of the document though the matter relates to substantive law such as the Registration Act or the Stamp Act or other specific provision. As a sequel to the above discussion coupled with reasons, it follows that merely because the document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded in the case on hand and is available to be raised even at a later stage or even in appeal or revision. Therefore, the impugned order which calls for interference is liable to be set aside.”
In the above extracted portion, it is held that objections can be raised with regard to inadmissibility of document on the ground that it has been not duly registered in spite of the fact that the said document has already been exhibited and is admitted in evidence during the course of trial before the Court below, as the said objection is a matter of substantive law. In the present case also no objection was raised by the defendants in O.S.No.190 of 2009 when Ex.A1 was marked in presence of their counsel.
Having regard to the order passed in Boggavarapu (supra) this Court deems it fit to dispose of this revision petition with the following directions:
a) the revision petitioners/defendants are at liberty to raise their objection before the trial Court as to the inadmissibility of Ex.A1 for want of registration,
b) in case, such an objection is raised, the trial Court shall consider the said objection at the appropriate stage of the matter and on merits and shall either exclude Ex.A1 from consideration and the evidence in regard to the said document or take into consideration the Ex.A1 and also the evidence in regard to the said document having regard to the decision on merits that may be made by the trial Court after taking into consideration the contents of Ex.A1 and the law applicable.
However, it is made clear that this Court is not going into the merits of the matter as to either the requirement of the registration or the sufficiency or otherwise of the stamp duty in respect of Ex.A1. The said aspects are left open for consideration by the trial Court. Accordingly, the Civil Revision Petition is disposed of. There shall be no order as to costs.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.