(Petition under Article 227 of Constitution of India, against the order dated 28/01/2004 in I.A.No.62/2004 in O.S.No.71/1998 on the file of the court of the 1st Additional District Judge, Rajahmundry).

This revision is filed under Article 227 of the Constitution of India being aggrieved by an Order dated 28-1-2004 made in I.A.No.62 of 2004 in O.S.No.71 of 1998 on the file of the learned I Additional District Judge, Rajahmundry, wherein the petition filed by respondents 1 and 2 herein under Order XIII Rule 4 read with Section 151 of the Code of Civil Procedure to direct the petitioner herein to pay stamp duty and penalty and obtain registration of the document i.e. Ex.B38 as per law in the time stipulated by the Court, was allowed.

The suit is filed for partition of the plaint schedule properties by metes and bounds. During the pendency of the suit, when D.W.6 (3rd defendant) was examined by Commission, a carbon copy of the family settlement deed dated 9-7-1987 was marked through him. Thereafter defendant Nos.4 and 5 filed the present I.A. stating that unless and until Ex.B.38 is duly stamped and registered, the same cannot be admitted in evidence. The 3rd defendant (petitioner herein) resisted the same saying that once the document is marked, defendants 4 and 5 cannot question the admissibility of the same. The trial Court, after hearing both sides and considering the material on record, ordered the petition and directed the 3rd defendant to pay the stamp duty and penalty on Ex.B38 on or before 9-2-2004. Aggrieved by the same, the present revision is filed.

Learned counsel for the petitioner submitted that once the document is marked, the question of paying stamp duty and registration is not necessary. Even otherwise, Ex.B38 is meant for collateral purpose. He has drawn attention of the Court to Orders 13 and 18 of C.P.C. and Rules 113 and 115 of the Civil Rules of Practice and submitted that once the document is marked, the question of its admissibility cannot be taken up for adjudication by the Court below.

The learned counsel for the petitioner also submitted that in the instant case while disposing of I.A.No.2242 of 2003 the Court below received the documents by observing that documents 1, 2, 4 and 8 mentioned in the said application shall be received, subject to proof and relevancy, whereas documents 3, 5, 6 and 9 to 11 shall be received subject to objection raised by the Advocate for the plaintiffs (respondents 3 to 6 herein). Further, it was observed in the main suit on 22-12-2003 that the document Nos.3, 5, 6 and 9 to 11 shall be marked subject to the objections that may be raised by the plaintiffs and the Advocate-commissioner was permitted to continue the chief-examination on the side of defendants 3 and 26 to 28. Those documents were supposed to be marked by the Court before tendering D.W.6 for cross-examination. But contrary to the above direction, the Court marked Exs.B30 to B.34 only and failed to mark the documents 1, 2, 5 and 12 filed along with the chief-examination affidavit of D.W.6. There was a docket endorsement on 31-12-2003 that documents 1, 2, 5 and 12 filed along with the chief-examination affidavit of D.W.6. were not marked and they have to be marked as Exs.B35 to B38. On that day, the question of admissibility of documents did not come up for consideration and there was no objection; therefore, they were marked. Hence, the question of further filing the present petition to oppose the admission of Ex.B38 in evidence and calling upon the revision petitioner-3rd defendant to pay stamp duty and penalty for the purpose of admission in evidence does not arise. In support of his contentions, the learned counsel relied upon the decisions in Basavaiah Naidu v. Venkateswarulu (AIR 1957 A.P. 1022), Vemi Reddy Kota Reddy v. Vemi Reddy Prabhakar Reddy (2003 (3) L.S. 480) and R.V.E. Venkatachala Gounder v. Arulmigu Visweswaraswami And V.P. Temple (2004 (1) ALD 18 (SC)) [LQ/SC/2003/1006] .

In Basavaiah Naidus case (1 supra), while interpreting Section 36 of the Stamp Act, vis--vis Order XIII Rules 3, 4 and 6 of C.P.C. this Court observed that Section 36 of the Stamp Act prohibits the rejection of a document once it has been admitted in evidence even in a subsequent stage of the same suit and it is clear that under this section, objection could not be taken when there had been such admission. If a document had, in fact, been admitted in evidence, though in disregard of the provisions of Section 35 of the Stamp Act, it will be available as evidence in that proceeding for all purposes, as if it had been properly stamped at the outset. Section 36 of the Stamp Act would apply even where the document is the foundation of the suit and even though the document has been wrongly admitted or admitted without objection. The provision of Order XIII Rule 3 of C.P.C. is subject to the provisions of Section 36 of the Stamp Act.

In Vemi Reddy Kota Reddys case (2 supra), this Court observed as under:

"32. Admitted in evidence, as appearing in Sec.36 of the Stamp Act means admitted after judicial consideration of the circumstances relating to its admissibility. There shall be a judicial determination of the question whether it can be admitted in evidence or not for want of the stamp. On the day when the document was shown in the said case to the witness and marked, the District Munsif had not applied his mind to the admissibility of the document and consequently, there is no judicial determination in regard to the objection raised by the defendant. Merely because a document was marked and shown to the witness, it would not mean that the objection raised by the defendant has been rejected. In the instant case also, there is absolutely no record to show that on that day or any day before that the District Judge determined judicially the question with regard to the admissibility of Ex.A1, particularly when there was a specific objection in that behalf was raised not only in the written statement, but also by way of a petition."

In R.V.E. Venkatachala Gounders case (3 supra), the Apex Court observed as under:

"18.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 a 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 rendered 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 in superior Court."

Whereas, the learned counsel for the respondents submitted that Ex.B38 family settlement deed is compulsorily registerable document and unless it is stamped and registered as required under the Stamp Act, the Court shall not took into it. In support of his contention, he relied upon the decisions in Javer Chand v. Pukhraj Surana (AIR 1961 SC 1655 [LQ/SC/1961/215] ), Veera Mallu v. Komaraiah (1964 (2) ALT 374), Setti Siddamma v. S. Ramulu (2004 (6) ALT 418 [LQ/TelHC/2004/843] ) and D. Sujata and another v. Revoori Vasantha and Another (2005 (4) ALD 878 [LQ/TelHC/2005/505] ).

In Javer Chands case (4 supra), the Supreme Court held as under:

"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, 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. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S.36 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 one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction."

In Veera Mallus case (5 supra), this Court while interpreting Sections 35 and 36 of the Indian Stamp Act observed as under:

"Section 35 of the Indian Stamp act precludes the admissibility of a promissory note, not properly stamped, for all purposes and the promissory note is inadmissible and cannot be used for any purpose. It is now an accepted proposition of law that the words admitted in evidence appearing in Section 36 of the Stamp Act means admitted after judicial consideration of the circumstances relating to the admissibility. Merely because the document is marked or shown to a witness, it would not mean that the objection raised by the defendant has been rejected. The real question, however, is whether the document has been admitted in evidence within the connotation of Section 36. In this case, there is no doubt that the document has not been admitted within the meaning of section 36, as no judicial mind was applied to the central question of admissibility and the objection of the defendant was not considered at all at that stage. The marking of the document and the showing of it to the witness therefore is not of much significance in the above circumstances."

In Setti Siddammas case (6 supra), this Court held that a party to the suit cannot have any substantial grievance when the Court receives a particular document. Mere receiving of a document does not entail any adjudication as to its admissibility or proof. Before the Code of Civil Procedure was amended, the questions as to admissibility and proof used to be considered during the course of chief-examination of a witness through whom the documents are introduced. 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 to scrutinize the admissibility or proof of a document.

In D. Sujatas case (7 supra), this Court observed as under:

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. 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. 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."

Before considering the rival contentions, it is necessary to notice the events that occurred during the process of marking the documents.

On 9-12-2003, the 3rd defendant filed an affidavit for marking documents. The matter was adjourned to 15-12-2003. On 15-12-2003, since I.A.No.2240 of 2003 was pending, the matter was directed to be posted to 17-12-2003. On 17-12-2003, again it was adjourned to 22-12-2003. On 22-12-2003, the said I.A.No.2240 of 2003 was allowed and Exs.B30 to B.34 were marked. Defendants 3 and 26 to 28 were directed to produce the diary books corresponding to documents 9 to 11 mentioned in the said I.A. before the Commissioner. The Advocate Commissioner was directed to permit defendants 3 and 26 to 28 to continue the chief-examination on their side and receive the document Nos.3, 5, 6, 9 to 11 shown in the said I.A. subject to proof and relevancy and mark the same subject to the objections that may be raised before him by the counsel for plaintiffs. Sri. D.V.K. Rao, Advocate was appointed as Advocate Commissioner to record the evidence of P.W.6. His fee was fixed at Rs.500/-. The suit was adjourned to 29-12-2003 for report. On 29-12-2003, the time for filing report was extended to 31-12-2003. On 31-12-2003, the counsel for the 3rd defendant filed a Memo stating that documents 1, 2, 5 and 12 filed along with the chief-examination affidavit of D.W.6 were not marked and they have to be marked as Exs.B35 to B38. The Court below heard the matter and marked the documents as Exs.B35 to B38. The matter was adjourned to 5-1-2004 for report of the Advocate-Commissioner. Thereafter, it was adjourned from time to time till 23-1-2004. On 23-1-2004, I.A.No.62 of 2004, came up for consideration and the matter was adjourned to 27-1-2004 and from 27-1-2004 to 28-1-2004. As stated above, on 28-1-2004, I.A.No.62 of 2004 was allowed and defendant No.3 was directed to pay stamp duty and penalty on Ex.B38 on or before 9-2-2004 and in the event of his failure to comply with the above said directions, the trial of the suit shall be proceeded without admitting the said document i.e., family settlement deed dated 9-7-1987 in evidence. The suit was adjourned to 10-2-2004. Being aggrieved by the said order dated 28-1-2004, the present revision is filed.

Learned counsel for the petitioner drawn attention of the Court to Order XIII Rule 4 of the Code of Civil Procedure governing the admissibility of evidence, which reads as under:

"Order XIII- Production, impounding and Return of documents:

RULE 4 Endorsement on documents admitted in evidence (1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:

(a) the number and title of the suit,

(b) the name of the person producing the document,

(c) the date on which it was produced, and

(d) a statement of its having been so admitted, and the endorsement shall be signed or initialed by the Judge.

(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialed by the Judge.

And submitted that the said provision contemplates endorsement on document admitted in evidence and there is no dispute that the document Ex.B38 contains the said endorsement and it was initialed by the learned Judge. Therefore, it must be deemed that the Court has considered as to its admissibility and then admitted the same. Therefore, no further adjudication is necessary and that itself is a judicial determination, particularly in the absence of any objection taken by the other side. Even otherwise, Ex.B38 is meant for collateral purpose; therefore, there is no difficulty in admitting Ex.B38 in evidence.

Whereas, the learned counsel for the respondent-defendants drawn attention of the Court to Order XIII Rule 3, Order XVIII Rule 4 of C.P.C., Rules 113 and 115 of the Civil Rules of Practice and Sections 35 and 36 of the Indian Stamp Act, which reads as under:

"Order XIII Rule 3: Rejection of irrelevant or inadmissible documents.

The Court may at any stage of the suit reject any document, which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

Order XVIII Hearing of the Suit and Examination of Witnesses

Rule 4. Recording of evidence by Commissioner.

(1) In every case, the evidence of a witness of his examination-in-chief shall be given by affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the court shall be taken orally by a Commissioner to be appointed by the court from amongst the panel of Commissioner prepared for this purpose on the same day;

Provided that, in the interest of justice and for reasons to be recorded in writing, the Court may direct that the evidence of any witness shall be recorded by the court in the presence and under the personal direction and superintendence of the judge.

(3) The Commissioner shall be paid such sum for recording of evidence as may be prescribed by the High Court.

(4) The amount payable to the Commissioner under sub-rule (3) shall be paid by the Court or by the parties summoning the witness as may be prescribed by the High Court.

(5) The District judge shall prepare a panel of Commissioner to record the evidence under this rule.

(6) The Commissioner shall record evidence either in writing or mechanically in his presence and shall make a memorandum which shall be signed by him and the witnesses and submit the same to the Court appointing such Commissioner.

(7) Where any question put to a witness is objected by a party or his pleader and the Commissioner allows the same to be put, the Commissioner shall take down the question together with his decision.

Rules 113 and 115 of Civil Rules of Practice:

"113. (New) Evidence:- (1) At the top of every sheet used for recording evidence shall be written the name of the witness, his father"s name, age residence and occupation, the number of the witness and the case number.

(2) All additions, alterations, etc., in the deposition shall be attested by the Presiding Judge.

Note: Where the evidence is taken down in the presence and under the personal direction and superintendence of the Judge or from the dictations of the Judge directly on a typewriter, Judge shall sign or initial each page as soon as it is completed.

115. Making of Exhibits: (1) Exhibits admitted in evidence shall be marked as follows:

(i) if filed by the plaintiff or one of several plaintiffs, with the capital letter A followed by a numeral A1, A2, A3 etc.;

(ii) if filed by the defendant or one of several defendants with the capital letter B followed by a numeral B1, B2, B3 etc.;

(iii) if Court exhibits with the capital letter C followed by a numeral C1, C2, C3 etc.;

(iv) if third party exhibits, with the capital letter X followed by a numeral X1, X2, X3 etc.

(2) The exhibits filed by the several plaintiffs or defendants shall be marked consecutively.

(3) If in a proceeding subsequent to the trial of a suit or matter, further exhibits are admitted in evidence, they shall be marked in accordance with the above scheme with numbers consecutive to the number on the last Exhibit previously filed."

Sections 35 and 36 of Indian Stamp Act

Section 35 Instruments not duly stamped inadmissible in evidence, etc.

No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that:-

(a) any such instrument not being an instrument chargeable with a duty of twenty paise or a mortgage of crop (Article 36(a) of Schedule 1-A) chargeable under clause (aa) or (bb) of Section 3 with a duty of forty paise, or a bail of exchange or promissory note, shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of fifteen rupees, or when ten times the amount of the proper duty or deficient portion thereof exceeds fifteen rupees, of a sum equal to ten times such duty or portion;

(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of three rupees by the person tendering it;

(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);

(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act.

SECTION 36 Admission of instrument where not to be questioned:-

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.

And submitted that it is now well settled proposition of law that the words admitted in evidence appearing in Section 36 of the Indian Stamp Act means admitted after judicial consideration of the circumstances relating to the admissibility of a document and in the present case, such an exercise was not done earlier and in fact, Ex.B38 was marked in the absence of the respondent-defendants 4 and 5.

At the outset, I am of the opinion that the trial Court has not committed any error in ordering I.A.No.62 of 2004 and directing the petitioner-3rd defendant to pay stamp duty and penalty on Ex.B38, which is a carbon copy of the purported family settlement deed dated 9-7-1987. The suit itself is for partition and in such suits, the plaintiffs are the defendants and the defendants are the plaintiffs. The purpose of marking Ex.B38 is to prove that there was already an earlier partition of the suit schedule properties. Therefore, it goes to the root of the matter and it is not pressed into service for any collateral purpose as submitted by the learned counsel for the petitioner. It was pressed into service to prove that there was an earlier partition and the present suit itself is not maintainable under law. Once the document is sought to be admitted in evidence for the purpose of proving the partition, unless and until it is properly stamped and registered, it is not admissible in evidence. Merely because the Court has marked the document as Ex.B38, it cannot be said that it is not open for the Court to direct the petitioner-3rd defendant to pay the stamp duty and penalty for the purpose of admitting the same in evidence, evidencing the earlier partition between the parities.

The decisions relied upon by the learned counsel for the petitioner have no relevance to the facts of the case. The Judgments relied upon by the learned counsel for the respondents categorically support the contention of respondent-defendants 4 and 5 that Ex.B38 though marked, it is not automatically liable to be admitted in evidence and there was no consideration as to whether it could be admitted in evidence or not by the Court below. Thus, the lower Court has not committed any error in passing the impugned order ordering the I.A. and requiring the petitioner-defendant to pay the stamp duty and penalty.

Learned counsel for the petitioner also contended that Ex.B38 being only a carbon copy of the original document, the question of either stamping it properly or registering the same does not arise. I am afraid, I cannot accede to the said contention. It is not the specific case of the revision petitioner that the original is available and he can produce the same. It is his contention that the document is in the custody of the respondent. In fact, there is no evidence to that effect and to show that under such and such circumstances, the original of Ex.B38 went into the custody of the respondents. His whole case is that Ex.B38 is a carbon copy of the earlier family settlement deed and in view of the same, the partition sought in the present suit is not tenable. Therefore, once the original is not stamped and registered, whether it is carbon copy or otherwise, when it is sought to be pressed into service for the purpose of proving their case and since the property in question is immovable property and its value is more than Rs.100/-, the same requires to be properly stamped as well as registered and unless it is properly stamped and registered, the same cannot be admitted in evidence.

On 31-12-2003, the Court below recorded Heard. The said documents are marked as Ex.B.35 to B.38. For report 5-1-2004. In fact, there was no judicial determination as to the nature of the document and its admissibility in evidence by the Court below on that day i.e. 31-12-2003. Admittedly, Ex.B38 was marked through D.W.6 and there was no endorsement by the Court that the other side had no objection for the same being marked. It is curious to note that the very same Presiding Officer, who directed marking on Ex.B38 has passed the impugned Order and it has been noted in the impugned Order on that day, the question of admissibility of the documents did not come up for consideration and that question was not decided. Under these circumstances, the Court below went into the judicial determination as to the admissibility of Ex.B38 and found that it is not admissible in evidence, unless and until it is properly stamped and registered.

In a matter like this, unless and until there is a judicial determination, it cannot be said that it 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 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 etc. In this case, on the date when the document was marked, the learned Judge has not applied his mind as to the admissibility of the document and consequently, there was no judicial determination in regard to the objection raised by defendants 4 and 5. Merely because the document was marked, it would not mean that the objection raised by the other side has been rejected. In the instant case, there is absolutely no record that on that day i.e. 31-12-2003 or any day before that, the trial Court determined judicially the question regarding the admissibility of Ex.B38. No opportunity was given to the other side and the document was mechanically marked without there being judicial scrutiny. In fact, even otherwise, the Court may, at any stage of the suit, reject any document, which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection (Or.XIII Rule 3 CPC). In this case, the same thing happened when a proper application was filed by the respondent-defendants 4 and 5. The application was considered and the impugned order was passed.

For all the above reasons, the Civil Revision Petition is dismissed; but without costs.