(Petition under Article 227 of the Constitution of India, Aggrieved by of C.P.C. to revise the order dated 15-12-2004 and made in I.A.No.193/2004 in O.S.No.67/2003 on the file of the Court of the Senior Civil Judge, Kamareddy.)

The defendants in O,S.No.67 of 2003 on the file of the Senior Civil Judge, Kamareddy, filed this revision aggrieved by the order, dated 15.12.2004, passed in I.A.No.193 of 2004.

The respondents filed the suit for recovery of certain amounts from the petitioners. The trial of the suit commenced. On behalf of P.W.1. an affidavit, in lieu of chief-examination was filed, on 15-04-2004, along with two documents, dated 09.05.1997 and 09.04.2000, respectively, titled as agreements. The trail Court marked them as Exs.A.3 and A.4.

On 29.06.2004, the petitioners are said to have been furnished copies of the affidavit as well as documents. They filed I.A.No.193 of 2004, on 02.07.2004, under Order 13 Rule 6 of C.P.C., with a prayer to reject the documents, marked as Exs.A.3 and A.4. Their contention was that the documents have the effect of creating interest in immovable property, and as such, they were required to be registered under Section 17 of the Registration Act, 1908. An objection was raised as to the amount of stamp duty, to be paid thereon. The I.A., was resisted by the respondents. Through its order under revision, the trial Court rejected the I.A., on taking the view that once a document is admitted, Section 36 of the Indian Stamp Act, 1899, prohibits the rejection of the same.

Sri P.S. Murthy, learned counsel for the petitioners, submits that the Court cannot be said to have applied its mind as to the admissibility or proof of that document at a stage when such document is enclosed to an affidavit filed in lieu of chief-examination of a witness. According to him, the occasion to consider these questions would arise only when the witness is cross-examined. He submits that in the context of submission of affidavit in lieu of chief-examination, the other party does not have an occasion to raise an objection to the documents and unless the objections are considered at an appropriate stage, the documents cannot became part of the record. He places reliance upon a Judgment of this Court in Setti Siddamma v. S. Ramulu (2004 (6) ALT 418 [LQ/TelHC/2004/843] )

Sri P. Giri Krishna, learned counsel for the respondents, on the other hand, submits that the respondents paid stamp duty as well as impounding fee on Exs.A.3 and A.4 and no prejudice, as such, would be caused if the documents continue to be on record. Placing reliance upon the judgment of the Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Visweswaraswami (AIR 2003 SC 4548 [LQ/SC/2003/1006] ), learned counsel submits that the objection as to admissibility of the document can be raised even at the stage of hearing.

The short question that arises for consideration, in this revision, is as to whether a document can be said to have been admitted and received in evidence where it is filed along with an affidavit in lieu of chief-examination. This contingency arose on account of the recent amendments caused to C.P.C. Earlier, whenever a document was being introduced through a witness, during the course of chief-examination, the counsel for the opposite party used to have an opportunity to raise objections as to the admissibility of such document and the Courts were dealing with the same. If a document is filed along with an affidavit in lieu of chief-examination, such an opportunity is not available either for the Court or for the counsel appearing for the other party. This very question was dealt with, by this Court in Setti Siddammas case (1 supra). After examining the relevant provisions as well as the judgment of the Supreme Court in R.V.E Venkatachala Gounders case (2 supra), this Court held as under:

"In view of the amendment to the Code, a witness is entitled to file an affidavit in lieu of his chief-examination. In the affidavit, the documents, which he intends to rely upon, are invariably referred to. In such a case, there would not be any occasion either for the Court or for the opposite party to scrutinize the admissibility or proof of a document. This , however, does not mean that every document, which is referred to in the affidavit, has to be treated either as having been admitted or proved. The event, which hitherto, used to occur at the stage of chief examination, stands relegated to the stage of cross-examination. During the course of cross-examination, the opposite party can certainly raise objections as to the admissibility or proof of any document. In such an event, the witness or the party, who intends to rely upon the document, may choose either to withdraw the document from the evidence, or to meet the objections that may have been raised by the opposite party. In such an event, only those documents, which survive the objections raised by the opposite arty, can constitute the documentary evidence of the case, and not those in respect of which the objections are sustained. The result would be, notwithstanding the fact that the documents were referred to with a particular marking in the affidavit filed in lieu of the chief-examination, the Court has, invariably to exclude such of those documents, which are found either to be inadmissible or not proved. Consequently, a new numbering and marking needs to be assigned to the documents introduced through a witness and found to have been proved and admissible, at the conclusion of the cross-examination."

The principle laid down by this Court squarely applies to the facts and circumstances of this case. It is a different thing as to what result would ensue, after the Court records a finding on consideration of the objections. The Judgment of this Court in Mulla Abmsabgari Dastigiri, kurnool v. B. Pullamma (2004 (4) ALD 82 [LQ/TelHC/2004/113] ) deals with the objections raised in respect of an unregistered document. The necessity to apply the principle therein does not arise in this case, since the trial Court is yet to apply its mind on this aspect.

It is true 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. The bar, in this regard, operates as to the adequacy of the stamp duty. Even assuming that the objection raised by the petitioners herein is as regards the adequacy of stamp duty, it cannot be said that Section 36 operates as a bar. The reason is that the initial admission of the instrument, referred to in this section, presupposes that party, which was entitled to oppose it, had raised an objection, or did not avail the opportunity to do so. It has already been observed that the occasion to raise an objection, as to admissibility of the document, does arise at a stage, when the documents are filed along with the affidavit, in lieu of chief-examination. Mere giving of identification marks to the document, at that stage, cannot constitute admission of instrument, as contemplated under Section 36 of the. Therefore, when there was no admission of the document, as provided for in law, the question of there being any bar from raising objection as to admissibility does not arise.

For the foregoing reasons, the Civil Revision Petition is allowed and the order under revision is set aside. The trial Court is directed to examine the admissibility of the documents, which were earlier marked as Exs.A3 and A.4 afresh by taking into account the objections that may be raised by the petitioners. No order as to costs.