THE HON'BLE SRI JUSTICE NOUSHAD ALI
CIVIL REVISION PETITION No.3989 of 2010
04-10-2012
Athapuram Raghuramaiah and another.
Dyava Ramaiah
Counsel for the petitioners : Sri P.V. Narayana Rao
Counsel for Respondent : Sri V.V. Ramana Rao
<Gist:
>Head Note:
? Cases referred:
1. AIR 2007 SC 637
2. 2011 (2) ALD 71
3. AnWR 1964 AP 468
4. 2004(3) ALD 187
ORDER :
This Civil Revision Petition is directed against the order dated 02.03.2010 in
O.S.No.43 of 2008 passed by the Junior Civil Judge, Vemulavada, Karimnagar
District, wherein it has been held that Exs.B-1 to B-3 documents marked through
D.W.1 were deficiently stamped and accordingly directed the concerned party to
take steps for impounding the documents either before the Court or before the
concerned authorities.
2. The respondent herein filed suit O.S.No.43 of 2008 on the file of the Junior
Civil Judge, Vemulavada, Karimnagar District, impleading the petitioners herein
as defendants seeking a decree for perpetual injunction restraining them from
entering into and interfering with the peaceful possession and enjoyment of the
suit schedule property measuring Ac.0.04 1/2 gts of land in Sy.No.43/A situated
at Kurikyala Village, Gangadhar Mandal, Karimnagar District. According to the
plaint averments, the respondent-plaintiff is the absolute owner and is in
exclusive possession of the said property. His name is also reflected in the
revenue records, including the Pattadar Pass Book. The petitioners-defendants
are strangers to the said land and they have no right or interest whatsoever
over the said property. The respondent-plaintiff's possession was sought to be
disturbed by the petitioners-defendants because he refused to sell the land to
them.
3. It appears that the 1st petitioner-defendant No.1 has not chosen to file
written statement. The 2nd petitioner-defendant No.2 filed written statement,
inter alia, stating that the respondent-plaintiff entered into an agreement of
sale of the suit land with the 1st petitioner-defendant No.1, who is her
husband, and on payment of the total sale consideration, possession of the suit
schedule property was delivered to the 1st petitioner-defendant No.1. Thereupon
he constructed a house after obtaining necessary permission from the Gram
Panchayat and thus the petitioners-defendants acquired the right over the suit
schedule property and are in enjoyment of the same.
4. After the evidence on behalf of the respondent-plaintiff was closed, the 1st
petitioner-defendant No.1 was examined as D.W.1 on 23.10.2009 and Exs.B-1 to B-3
documents, which are agreements of sale dated 20.10.2001, 1.3.2002 and
23.7.2003, respectively, were marked through him. Later, during the course of
examination of the 2nd petitioner-defendant No.2 as DW.2, an objection was taken
regarding the admissibility of the said documents on the ground that they were
deficiently stamped. Considering the said objection, the Court below found that
the said documents are deficiently stamped and accordingly passed the impugned
order dated 2.3.2010 with a direction to the concerned party to take steps for
impounding the documents either before the Court or before the concerned
authorities.
5. Heard Sri P.V. Narayana Rao, learned counsel appearing for the petitioners-
defendants as well as Sri V.V. Ramana Rao, learned counsel appearing for the
respondent-plaintiff.
6. Sri P.V. Narayana Rao, learned counsel for the petitioners-defendants
contends that the impugned order is without jurisdiction. The learned counsel
submits that the documents in question were marked through D.W.1 on 23.10.2009
without any objection from the respondent-plaintiff and hence the said documents
were admitted in evidence. When once the documents were so marked, it is not
permissible for the same Court to impound the said documents as per the
provisions of Section 36 of the Indian Stamp Act (for brevity "the Act").
According to him, the only course left open to the aggrieved party is to raise
the said dispute, if an appeal is preferred against the said order.
7. The learned counsel placed reliance on a judgment of the Apex Court in
SHYAMAL KUMAR ROY v. SUSHIL KUMAR AGARWAL1 and also a judgment of this Court in
AKKIREDDI NAGAYAMMA AND ANOTHER v. ADHIKARI APPALANAIDU2 in support of the
proposition that the Court is not competent to reopen the matter and direct for
impounding of the document.
8. On the other hand, Sri V.V. Ramana Rao, learned counsel for the respondent-
plaintiff submits that the documents in question have not been admitted in
evidence and hence the provisions of Section 36 of the Act have no application
to the facts of the present case. The learned counsel submits that the documents
in question were only marked and mere marking of the documents does not amount
to admission of the same unless that fact is judicially determined by the Court
in terms of Order 13 Rule 4 C.P.C. He, therefore, submits that the Court below
was competent to impound the documents and, in that view of the matter, the
impugned order is unassailable.
9. I have considered the aforesaid contentions and perused the material placed
before this Court.
10. There cannot be any controversy with regard to the principle laid down by
the Apex Court in SHYAMAL KUMAR ROY's case (1 supra) and this Court in AKKIREDDI
NAGAYAMMA (2 supra) to the effect that Section 36 of the Act would operate after
a document is admitted in evidence. But, the question that falls for
consideration in this case is whether Exs.B-1 to B-3 were admitted in evidence
so as to attract the provisions of Section 36 of the Act.
11. The endorsements made on the documents show as follows:
"Ex.B-1 by D.W.1
Dt.23.10.2009
in O.S.No.43 of 2008
Sd/- 23.10.2009
J.C.J."
The said endorsements bear the signatures of the learned Judge. Whenever
documents are admitted in evidence, the procedure prescribed under Order 13 Rule
4 C.P.C. has to be followed. The said provision postulates that on every
document admitted in evidence, particulars, viz., the number and title of the
suit, name of the person producing the document, the date on which it was
produced, and a statement of its having been so admitted shall be mentioned and
the endorsement shall be signed or initialled by the Judge. Therefore, one of
the essential requirements under the said provision is that the document should
contain a specific statement that it has been admitted in evidence and the
endorsement shall be signed or initialled by the Judge.
12. A bare perusal of the endorsement of the learned Judge, in the instant
case, does not show any statement to the effect that the documents have been
admitted in evidence.
13. Similar question was considered by this Court in GANTA VEERAMALLU AND
OTHERS v. TALLAPPALLU KOMARAIAH3 and VEMI REDDY KOTA REDDY v. VEMI REDDY
PRABHAKAR REDDY4, wherein it was held that the words "admitted in evidence" as
appearing in Section 36 of the Indian Stamp Act mean "admitted after judicial
consideration of the circumstances relating to its admissibility". There shall
be judicial determination of the question whether it can be admitted in evidence
or not for want of stamp on the day when the document was shown to the witnesses
and marked. Merely because a document was marked or shown to the witness would
not mean that the objection raised by the opposite party was rejected by a
judicial determination.
14. In the instant case also, though the documents were marked as above, it
cannot be said that the Court had applied the judicial mind and admitted the
documents in evidence. Further, even before conclusion of the evidence on behalf
of the petitioners-defendants, an objection as to the admissibility of the
documents was taken by the respondent-plaintiff.
15. Hence, in the facts and circumstances of the case, it must be held that the
matter had not reached the stage for invoking the provisions Section 36 of the
Act. In that view of the matter, the Court below has rightly held that the
documents are liable to be impounded for appropriate steps to be taken by the
concerned party.
16. For the foregoing reasons, I do not find any illegality or material
irregularity in the impugned order warranting interference by this Court.
17. This Civil Revision Petition is devoid of merits and it is accordingly
dismissed. As a sequel, interim stay granted by this Court on 3.9.2010 stands
vacated and C.R.P.M.P.No.5312 of 2010 is dismissed. No order as to costs.
________________________
JUSTICE NOUSHAD ALI
04.10.2012.
NOTE: L.R. Copy be marked.
