1. The 4th defendant in O.S.No.56 of 2013 on the file of the Motor Accidents Claims Tribunal-cum-VIII Additional District and Sessions Judge, Nizamabad preferred this revision under Article 227 of the Constitution of India challenging the docket order dated 11.09.2015 over-rulling the objection raised by the learned counsel for the 4th defendant about admissibility of possessory agreement or sale, dated 26.06.2012 marked as Ex.A.1.

2. The revision petitioner is the 4th defendant, respondent No.1 is the plaintiff and respondents 2 to 4 are defendants 1 to 3 before the trial Court.

3. The case of the petitioner is that at the time of marking possessory agreement of sale as Ex.A.1 objection could not be raised as it was marked in the affidavit filed under Order XVIII Rule 4 CPC in lieu of examination in chief and learned counsel was sick on that day and therefore, questioning the admissibility of the possessory agreement of sale, learned counsel for the revision petitioner, filed memo bringing to the notice of the Court that the document is inadmissible, in view of Explanation to S.No. 47A of Schedule 1-A of the Indian Stamp Act and 17(1) of the Registration Act. The trial Court, considering the objection based on memo, passed an order holding that when the document is received in evidence, marked as exhibit without any objection, the same cannot be agitated at the subsequent stage, placing reliance on judgments of this Court in Shaik Qutubuddin S/o Shaik Ahmed and another v. Goli Vishwanatham S/o Mallesham and others (2004(2)ALD) 329), Cheryala Srinivas v. Moola Sujatha and others (2010(1) ALT 448) AND B.Bhaskar Reddy v. Bommireddy Pattabhi Rami Reddy (died) per LRs and others (2010(6)ALD 307).

4. Questioning the propriety of the docket order referred supra, the present revision petition is filed.

5. Raising several contentions and one among the other is that mere marking of document as exhibit without applying mind, does not amount to admission of document in evidence and the revision petitioner is entitled to challenge the admissibility of the document at any time and Section 36 of Indian Stamp Act, 1899 is not applicable to the present facts of the case. But the trial Court committed a grave error in exercising the jurisdiction conferred on it. Therefore, it warrants interference of this Court and prayed to set aside the order placing reliance on Omprakash v. Laxminarayan and others (2014) 1 SCC 618 [LQ/SC/2013/1138] ).

6. The respondents did not file any counter in view of the undisputed facts except disputing as to law.

7. The main endeavour of the learned counsel for the revision petitioner is that the Court did not apply its mind while marking the document as exhibit, it does not amount to actually admitting the document in evidence and such an objection about the admissibility of document in evidence can be raised at any stage, placed reliance on judgment reported in Athapuram Raghuramaiah and another v. Dyava Ramaiah (2012 (6) ALT 271 [LQ/TelHC/2012/877] ), Vemireddy Kota Reddy v. Vemi Reddy Prabhakar Reddy (2004(3) ALD 187), and B.Bhaskar Reddy v. Bommireddy Pattabhi Rami Reddy (died) per LRs and others (2010 Law Suit (AP) 445). On the strength of the above judgments, Sri V.Ravi Kiran Rao, learned counsel for the petitioner contended that the order under challenge is erroneous and it is nothing but erroneous exercise of jurisdiction which conferred on the trial Court.

8. Per contra, Sri K.Venu Madhav, learned counsel for the respondent No.1 would contend that when the document is admitted in evidence, the same cannot be questioned at any subsequent stage except under Section 61 of the Indian Stamp Act and apart from that the document marked as Ex.A.1 though it styled as possessory contract of sale, the defendant denied delivery of possession. In such a case, admission of the contract of sale in evidence, marking the same as Ex.A.1 is not an error to set aside the same exercising power under Article 227 of the Constitution of India. He also placed reliance on T.Basavaraju (died) per LRs and others v. T.Nagaratnam and others (2006(3) ALD 838), M. Narasimhulu v. M.Laxmamma (1996 Law Suit (AP) 447)and Isra Fatima v. Bismillah Begum (2002 Law Suit 832) contending that once the document is marked admissibility cannot be questioned at subsequent stage.

9. In view of the rival contentions, the core issues before this Court are:

(1) Whether judicial order can be passed on memo filed by the petitioner raising objection about the admissibility of possessory agreement of sale

2) Whether the petitioner/defendant No.4 is entitled to question the admissibility of the document when it was marked as Ex.A.1 by the trial Court, if so, the docket order dated 11.09.2015 under challenge in the revision be set aside while exercising power under Article 227 of the Constitution of India by this Court.

Inre-POINT NO.1:

10. As seen from the material on record, the suit was filed for grant of decree for specific performance of contract of sale based on possessory contract of sale Ex.A.1 dated 26.06.2015 which is the basis for the claim or document sued upon. It was marked as Ex.A.1 by the trial Court. The trial Court also while passing order under challenge in Para 2 of page 2 of the order observed that the affidavit in lieu of examination in chief under Order XVIII Rule 4 CPC was filed and the document was marked on later date, but learned counsel for the 4th defendant did not raise any objection about the admissibility of the possessory contract of sale as Ex.A.1. Though a specific reason was assigned for failure to raise objection about admissibility at the time of marking, is not supported by any material. However, he filed memo dated 01.09.2015 raising an objection that the agreement of sale dated 26.06.2012 marked as Ex.A.1 is inadmissible in evidence and requested to delete the same from the record after hearing both counsel as to the admissibility of contract of sale in evidence.

11. On the strength of the memo, the trial Court heard both counsel and passed docket order dated 11.09.2015, which is under challenge in the present revision.

12. The first and foremost contention of the learned counsel for the respondents is that no judicial order be passed based on memo. Filing of memo is not contemplated either under Code of Civil Procedure or under Civil Rules of Practice. The purpose of receiving memos by the Courts is only to receive certain intimation pertaining to the lis pending before it. Since filing of memo is not contemplated under Code of Civil Procedure or Civil Rules of Practice, no judicial order can be passed on memo. But the trial Court passed a judicial order based on memo which is contrary to the established practice. Therefore, the order passed by the trail Court basing on memo dated 11.09.2015 filed before the trial Court is erroneous and it is an illegal exercise of jurisdiction which is conferred on it.

13. In view of my discussion in the earlier para, I am of the clear view that no judicial order can be passed on memo. Accordingly, Point No.1 is decided in favour of the respondents and against the petitioner.

Inre-POINT No.2:

14. The real controversy between the parties to the revision is as to the admissibility of possessory contract of sale as it was insufficiently stamped and in view of explanation to S.No.47A of Schedule I-A of Indian Stamp Act and in view of Section 17 of the Registration Act and that the trail Court without applying its mind marked the document as Ex.A.1 in evidence. In such a case, admissibility of the document can be questioned in view of specific contention of the petitioner.

15. Whereas, learned counsel for the respondents contented that when a document is admitted and marked as exhibit, it cannot be questioned except under Section 61 in view of interdict contained under Section 36 of Indian Stamp Act.

16. The agreement of sale is dated 26.06.2012 and it is undisputedly a possessory agreement of sale as contended by the plaintiff in para 2 of the plaint. However, delivery of possession is disputed in the written statement while contending that the 4th defendant is in possession and enjoyment of the property. On the face of Agreement of Sale, which is possessory contract of sale subsequent to amendment of Explanation to S.No. 47A, Schedule 1- A of the Indian Stamp Act, which came into force in the year 1986. According to it, when a contract is followed by delivery of possession or evidenced by delivery of possession, stamp duty is to be paid as if it is a sale under S.No.47A of Schedule 1-A of the Indian Stamp Act. If the contention of the revision petitioner is accepted that the document is a possessory contract or agreement of sale, it is liable to be stamped under S.No. 47A of Schedule 1-A of the Stamp Act. But it was executed only on a stamp paper worth Rs.100/- and the nomenclature is sale deed for Rs.14,20,000/-, there is a reference about delivery of possession in para 3 at page 3 of plaint. Even if it is treated as contract or agreement, it is admissible in evidence subject to payment of penalty and stamp duty as per the provisions of the Stamp Act. When the possessory contract or agreement is not sufficiently stamped it is inadmissible in evidence. No doubt, Section 36 of the Act created an interdict to raise an objection about admissibility of document, once admitted, except under Section 61, it is the duty of the Court to apply its mind about the admissibility and determine judicially but the Presiding Officer failed to look into the admissibility of the document for want of stamp duty and penalty. Putting signature on the stamp of marking on the document cannot be considered as admission of a document in evidence. When similar issue came up before Division Bench of this Court in W.P.No.29434 of 2013, dated 12.02.2014, placing reliance on judgment of Apex Court in R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P.Temple and another (AIR 2003 SC 4548 [LQ/SC/2003/1006] ) and Ram Rattan (dead) by legal representatives v. Bajranlal and others (AIR 1978 SC 1393 [LQ/SC/1978/168] ) drawn distinction between admitting in evidence and marking of document. Marking of a document is only for convenient reference, whereas, admitting document is taking the document as evidence after applying judicial mind. In view of principle laid down in R.V.E.Venkatachala Gounders case (11th supra) and Ram Rattan (dead) by LRs case (12th supra), the parties can raise objection as to admissibility of document and mere marking of document for convenience of reference would not preclude the parties to raise objection as to the admissibility. In R.V.E.VENKATACHALA Gounders case (11th supra) the Apex Court is of the view that merely because a document is marked as 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. Similarly in Ram Rattrans case (12th supra) the Supreme Court is of the view that when the document was tendered in evidence by the plaintiff while in witness box, objection has been raised by the defendants that the document was inadmissible in evidence as it was not only insufficiently stamped, but also for want of registration, it was obligatory upon the learned trial judge to apply his mind to the objection raised and decide the objection in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. However, would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none the-less be obligatory upon the Court to decide the objection. The endorsement made by the learned trial Judge that objected, allowed subject to objection, clearly indicates that when the objection was raised, it was not judicially determined and the document was tentatively marked and in such a situation, Section 36 would not attract. Though facts are different, the law laid down by the Courts time and again is that to admit a document in evidence the Court has to apply its mind and decide the admissibility of document in evidence, judicially, mere marking for convenience of reference itself would not amount to admitting the document by applying judicial mind and it is not a judicial determination as to the admissibility of document in evidence. Section 35 created clear embargo against acting upon insufficiently stamped document for any purpose. Any purpose would include collateral purpose. Even if both parties gave consent for marking insufficiently stamped document, it shall not be act upon, more particularly to enforce the right of parties under contract of sale, unless it falls under any clauses of proviso. The present document does not fall within any of the clauses of proviso to Section 35 of the Act, when document shall not be acted upon admitting the same by consent would mean that it is the duty of the Court to decide admissibility of document in evidence judicially.

17. In such situation, the bar under Section 36 of the Act would not come in the way of the parties to raise an objection as to the admissibility of the document. In the present case except affixing stamp giving numerical number to the possessory contract of sale as Ex.A.1, signing thereon by officer, nothing discloses about the judicial determination of admissibility of possessory contract of sale. The provisions of Stamp Act are fiscal in nature and such provisions have to be construed strictly, at the same time, it is the duty of the office to decide or determine judicially about admissibility of the document, irrespective of objection to avoid loss of revenue to the State. In the absence of any judicial determination about admissibility of the document, the same can be questioned at a later stage though stamp is affixed marking the document as exhibit.

18. Learned counsel for the petitioner mainly placed reliance on Omprakashs case (4th supra) to support his contention. Where the Apex Court held that at the time of considering the issue, the question of admissibility of document, it is the recitals therein which shall govern the issue. It does not mean that the recitals in the document should be conclusive, but for the purpose of admissibility of the document it is the terms and conditions incorporated therein which shall hold the field and when the document discloses acknowledgment of payment of part of consideration and delivery of possession to the purchaser by the seller based on those recitals, the Court has to judicially determine the admissibility of the document in evidence irrespective of the contentions raised in the written statement. Even if the principle laid down in the above judgment is applied, the admissibility of Ex.A.1 can be challenged at any stage when the trial Court did not judicially determine the question of admissibility of document.

19. In B.Bhaskar Reddys case (7th supra), this Court is of a view that with the aid of purposive interpretation, the Court shall insist upon payment of proper stamp duty to avoid loss of revenue to the State. This legal principle is not in dispute.

20. Learned counsel for the petitioner further drawn the attention of this Court to Athapuram Raghuramaiah and another v. Dyava Ramaiah (2012(6) ALT 271), wherein this Court considered the scope of Section 36 of the Indian Stamp Act and Order XIII Rule 4 CPC for impounding documents and held that mere marking of a document or showing it to the witness would not amount to admissibility of document in evidence, after judicial consideration as to its admissibility, unless the endorsement made on the document at the time of marking contains a specific statement as to its admission in evidence and signed or initialled by the Judge as prescribed under Order 13 Rule 4 CPC, it cannot be said to be admitted. This Court further held that the words admitted in evidence as appearing in Section 36 of the Indian Stamp Act mean admitted after judicial consideration of objections relating to its admissibility. Thus, there shall be a 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 judicial determination.

21. I n Vemireddy Kota Reddys case (6th supra), this Court held that the objection as to admissibility of the document has to be decided before assigning exhibit number. When the documents were marked as exhibits in the absence of defendant or his counsel and without considering the nature of the document by the Court, assigning exhibit number cannot be said to be admitted in evidence and interdict contained in Section 36 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 adversary to challenge the admissibility of document in evidence. In the said judgment, single Judge of this Court relied on Javer Chand and others v. Pukhraj Surana (AIR 1961 SC 1655 [LQ/SC/1961/215] ) to conclude that marking of a document is assigning exhibit number without judicial determination would not amount to admitting document in evidence and such objection can be raised at later point of time.

22. Whereas, learned counsel for the respondents placed reliance in T.Nagaratnams case (8th supra), so also M.Narasimhulus case (9th supra) and Isra Fatimas case (10th supra). In all the three judgments, the single Judges of this Court decided the bar contained under Section 36 of Indian Stamp Act holding that until and unless there is a judicial determination it cannot be said that it has been admitted in evidence though it is marked. Mere marking of document itself is not sufficient and there should be judicial determination as to the nature of document and its admissibility. Further the words admitted in evidence appearing under Section 36 of the Act means admitted after judicial consideration of objections relating to admissibility. In the absence of judicial determination marking of document mechanically is an illegality. Even otherwise at any stage of the suit, the Court may reject any document which it considers irrelevant or otherwise in admissible in view of Order 13 Rule 3 CPC.

23. In M.Narasimhulus case (9th supra) single Judge of this Court held that in view of bar under Section 36 once the document was admitted in evidence, the same cannot be questioned, at subsequent stages, but in view of law declared by Apex Court, the objection can be entertained to determine judicially at any subsequent stage.

24. According to Order 13 Rule 3 CPC the Court may at any stage of the suit, reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds for such rejection. Order 13 Rule 4 CPC prescribes the endorsement to be made on the document when a document is admitted in evidence. According to it, there shall be an endorsement on every document which has been admitted in evidence containing number and title of the suit, the name of the person producing the document, the date on which it was produced and a statement of its having been so admitted and the endorsement shall be signed or initialled by the Judge.

25. Here there is an endorsement on the reverse of possessory contract of sale consisting the details under Order 13 Rule 4(1)(A) to (C), 1(D) is absent. Therefore, the document cannot be said to be admitted after judicial determination, in such a case, exercising power under Order 13 Rule 3 CPC, the Court can reject any document which it considers irrelevant or in-admissible, recording reasons.

26. In the present case, the trial Court did not record any statement as to the admissibility as required under Order 13 Rule 4(1)(d) and there was absolutely no judicial determination about the admissibility of possessory contract of sale, in evidence. In such a case, when an objection was raised, the Court is under obligation to record reasons in admitting the document in evidence or reject the same even if it is marked for numerical purpose or for convenience of reference, by following the procedure under Order 13 Rule 3 CPC. The trial Court in the present case, only on the ground that once the document is marked as exhibit, the same cannot be challenged in view of interdict contained under Section 36 of Indian Stamp Act. The trial Court did not draw distinction between marking of document for convenience of reference and judicial determination of admissibility of the document, as no objection was raised as to the admissibility of the document at the time, it was marked, committed an error in considering the objection raised by the learned counsel for the petitioner i.e. 4th defendant before the trial Court.

27. The objections raised by the petitioner are twofold. The first objection as to the admissibility of the document due to insufficiency of stamp on the contract of sale or sale deed, according to explanation to S.No.47A of Schedule 1-A the stamp duty payable on the possessory contract of sale is as follows:

(Explanation-I):- An agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a sale under this Article:

Provided that, where subsequently a sale deed is executed in pursuance of an agreement of sale as aforesaid or in pursuance of an agreement referred to in Clause (b) of Article 6, the stamp duty, if any, already paid or recovered on the agreement of sale the adjusted towards the total duty leviable on the sale deed.

28. The present facts of the case are that the document already marked as Ex.A.1 was not properly marked in view of the above principles. In such a case, the document cannot be admitted in evidence except after collecting stamp duty and penalty or impounding the document under Order 13 Rule 1 CPC, but the trial Court without following due procedure just marked a fixing stamp, without judicial determination as to the admissibility of the said document. In such a case, the Court can reject the document as it is inadmissible by exercising power under Order 13 Rule 3 CPC. 29. The other contention of the learned counsel for the petitioner is that, since, the document is styled as sale deed which is required to be registered under Section 17 of the Registration Act, when it is not registered, the same cannot be admitted in evidence. This contention cannot be sustained for the reasons that an unregistered sale deed or an agreement of sale required to be registered under Section 17 of the Registration Act can be admitted in evidence in a suit for specific performance of contract of sale in view of Section 49(C) of the Registration Act. In S.Kaladevi v. V.R.Somasundaram (AIR 2010 SC 1654 [LQ/SC/2010/384] ) the Apex Court held that an unregistered agreement of sale is admissible in evidence under Section 49(C) of the Registration Act, in a suit for specific performance of contract of sale and unregistered sale deed is also admissible in evidence. Thus, in view of the law declared by the Apex Court in the above judgment, the contention of the learned counsel for petitioner is not sustainable and on the ground of non-registration of document as per Section 17 of Indian Registration Act, the document cannot be rejected.

30. The objection as to admissibility may be raised by filing a petition to reject the document on the ground that it is inadmissible or by oral objection during pendency of the suit. Here, though no judicial order can be passed on the memo still the oral objection raised by the learned counsel as to the admissibility of the document is required to be considered and if the Court finds that the objection raised by the learned counsel as to the admissibility is sustainable, the course open to the Court is to reject the document exercising power under Order 13 Rue 3 CPC, merely because no application is filed under Order 13 Rule 3 CPC, the Court is not preclude from passing such order.

31. In any view of the matter, the petitioner herein raised an objection orally or bringing the same to the notice of the Court by filing a memo as to his objection, the Court has to pass appropriate orders, but passed an order which is contrary to law without distinguishing marking and admitting the document in evidence. Therefore, the docket order of the trial Court dated.11.09.2015 is erroneous, since, the trial Court did not exercise jurisdiction that conferred on it.

32. 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 preclude 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. Hence, the trial Court did not exercise its jurisdiction under Order XIII Rule 3 of CPC, consequently liable to be set aside.

33. By exercising power under Order XIII Rule 3 of CPC, possessory contract of sale dated 11.09.2015 which is marked as Ex.A1 is rejected as it is hit by explanation to S.No.47-A of schedule 1-A of Indian Stamp Act and inadmissible in evidence, since the document is not impounded or stamp duty and penalty is not paid.

34. No doubt, the powers of the Court under Article 227 of the Constitution are supervisory in nature and when the trial Court did not exercise the jurisdiction which is conferred on it or where the trial Court exercised its jurisdiction excessively or admitted inadmissible evidence or when the Court exercised its jurisdiction illegally or with material irregularity this Court can interfere with the order under challenge. In the present facts of the case, the Court failed to exercise its jurisdiction so vested on it to decide the admissibility of the document and thereby the order of the trial Court warrants interference of this Court since it is against the settled law.

35. In view of my foregoing discussion, I find no merits in the contentions of the learned counsel for the respondents and the trial Court committed grave error in rejecting the contention of the revision petitioner/4th defendant as to admissibility of the possessory contract of sale dated 26.06.2012. Therefore, the finding of the trial Court is hereby set aside, holding the point against the respondent and in favour of the revision petitioner.

36. In the result, the civil revision petition is allowed setting aside the order dated 11.09.2015 passed in O.S.No.56 of 2013 by Motor Accidents Claims Tribunal-cum-VIII Additional District and Sessions Judge, Nizamabad, rejecting the possessory contract of sale dated 11.09.2015, as it is inadmissible in evidence. It is made clear that the respondent No.1/plaintiff is entitled to get the document impounded or pay stamp duty and penalty as per rules and make a request to admit the same in evidence and on such request the Court may admit the document and mark the same.

There shall be no order as to costs.

Miscellaneous petitions if any, pending in this revision shall stand closed.