MANU/AP/0127/2015

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE

STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

Civil Revision Petition No. 4998 of 2014

Decided On: 06.03.2015

Appellants: G. Sudhaker Reddy

Vs.
Respondent: M. Pullaiah

Hon'ble Judges/Coram:
A. Ramalingeswara Rao, J.

Counsels:
For Appellant/Petitioner/Plaintiff: B. Venkat Rama Rao

For Respondents/Defendant: N. Ashok Kumar

Case Note:
Civil - Marking of documents - Civil Procedure Code, 1908 -
Present petition filed for challenging order whereby, Petitioner's
objection against marking of documents in evidence was rejected
and documents were marked - Whether documents were rightly
marked in evidence - Held, it is incumbent on parties to suit to file
documents in their possession in form of list at time of filing plaint
or written statement - Parties had produced document at later
stage but no leave of Court was taken for marking said documents
forming part of said list and were marked without objection -
Document which had been marked only for purpose of
identification, was not admitted in evidence and could not be
looked into for any purpose - It could not even be used for
deciding manner of entry into possession or for determining
nature of possession - Though Respondent had not sought leave
of Court while filing list of documents, subsequent to filing of
plaint, Court considered said defect as irregularity and not
illegality - Therefore, Trial Court was directed to follow provisions
of Code while receiving and marking documents - Petition
disposed of. [paras 16, 17, 26 and 59]

ORDER

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A. Ramalingeswara Rao, J. is not proof of its contents the
burden of proving the contents
1. This Civil Revision Petition is of the documents lies on the
directed against the order dated party seeking to mark the
02.12.2014 in O.S. No. 94 of document.
2010 passed by the learned
Junior Civil Judge, Ramannapet. 4. At this juncture, the court is
not inclined to look into the
2. The petitioner is the nature of document, relevancy
defendant in the suit. The suit of the document, whether the
was filed for possession over the same is disclosed in the
suit plot of an extent of 2281.5 pleadings or not, the probative
square feet out of Survey No. value of the document. As the
122 of Chityal Village and same, shall be decided at full
Mandal in Nalgonda District. The fledged trial of the suit.
issues in the suit were framed
on 27.01.2014. The plaintiff 5. Learned Counsel for the
filed an affidavit in lieu of chief petitioner contended that, even
examination on 19.03.2014. The at the time of marking of the
plaintiff filed the documents on document, the relevancy of the
30.04.2013. Out of the said document has to be looked into
documents, during the course of by the Court and it cannot be
evidence of P.W.1, Exs.A6 to postponed. He relied on Section
A10 were already marked. 5 of the Indian Evidence Act,
When the plaintiff sought to 1872 (for short, the Evidence
mark the memorandum of Act), and Order VII Rule 1 read
understanding dated with Order XIII Rules 1 to 3 and
21.10.1980, which was shown 7 of CPC in support of his
at serial No. 6 of the list of contention. He relied on
documents filed on 30.04.2013, National Textile Corporation Ltd.
the defendant raised an v. Nareshkumar Badrikumar
objection for marking the Jagad, Kalyan Singh Chouhan v.
document stating that the same C.P. Joshi, G. Sanjeeva Reddy
was not mentioned by the v. Indukuru Lakshmamma,
plaintiff in his plaint and he R.V.E. Venkatachala Gounder v.
should not be permitted to mark Arulmigu Viswesaraswarni, Nori
the document without pleading Srirama Sastri v. Nori
the same in his plaint. The trial Lakshmidevamma, Balaji Adithi
Court overruled the objection v. Baddam Chandra Reddy and
stating as follows: Musammat Sumitra Kuer v.
Ram Kair Chowbey.
At the time of marking a
document, the court will not go 6. Learned Counsel for the
into the merits of the document, respondent, on the other hand,
it is only concerned, as to submitted that the admissibility
whether requisite stamp duty is and non-admissibility of
paid, if the document is to be document or its relevancy need
compulsorily registered, it will not be decided at the stage of
verify, whether the document is marking the document, and it
registered or not, and whether can be decided during the trial
the document is relevant to the of the suit.
facts of the case and will be
helpful to the court to 7. The issue relating to the
adjudicate the matter between method and manner of
the parties effectively. production of documents, the
stage of objection to be raised
3. Here, it is pertinent to note against such documents, and
that, mere marking of document the proof of documents has

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been troubling the Courts on a 1999 with effect from
number of occasions. Though 01.07.2002, which deals with
the learned Counsel for the the effect of non-production of
petitioner relied on Order VII documents. In order to gather
Rule 14 read with Order XIII the intention of legislature, it is
Rules 1 to 3 and 7 of CPC, there necessary to extract the
are other provisions in CPC, repealed Rule 2 of Order XIII
which deal with the issue CPC, and it reads as follows:
relating to documents. Apart
from the provisions in CPC, 2. Effect of non-production of
Chapter X of the Andhra documents - (1) No
Pradesh Civil Rules of Practice documentary evidence in the
and Circular Orders, 1980 (for possession or power of any
short, Civil Rules of Practice), party which should have been,
deal with documents. but has not been produced in
accordance with the
8. Rule 14 of Order VII CPC requirements of rule 1 shall be
enjoins upon the plaintiff to received at any subsequent
produce a list of documents stage of the proceedings unless
along with the plaint if he wants good cause is shown to the
to rely on any documents. If he satisfaction of the Court for the
is not in possession of any non-production thereof; and the
document, he shall state in Court receiving any such
whose possession or power it is. evidence shall record the
Sub-rule (3) of Rule 14 reasons for so doing.
specifically states that a
document which ought to be (2) Nothing in sub-rule (1) shall
produced in Court by the apply to documents,-
plaintiff when the plaint is
presented, or to be entered in (a) produced for the cross-
the list to be added or annexed examination of the witnesses of
to the plaint but is not produced the other party,
or entered accordingly, shall
not, without the leave of the (b) handed over to a witness
Court, be received in evidence merely to refresh his memory.
on his behalf at the hearing of
the suit. For better clarity, sub- 10. A similar provision exists in
rule (3) of Rule 14 of Order VII respect of the duty of the
CPC is extracted hereunder: defendant in Order VIII Rule 1A
of CPC inserted by Act 46 of
(3) A document which ought to 1999. Order XI dealing with
be produced in Court by the discovery and inspection also
plaintiff when the plaint is contain provisions relating to
presented, or to be entered in documents in Rules 12 to 18
the list to be added or annexed thereof. Further in Order XII
to the plaint but is not produced relating to admissions, a
or entered accordingly, shall provision is made in Rule 2
not, without the leave of the relating to notice to admit
Court, be received in evidence documents. Rule 2A of the said
on his behalf at the hearing of order is relevant at this stage
the suit. and it reads as follows:

9. The above sub-rule was 2A. Document to be deemed to

substituted by Act 22 of 2002 be admitted if not denied after
with effect from 01.07.2002 for service of notice to admit
the earlier sub-rule (3). This documents. (1) Every document
substitution has become which a party is called upon to
necessary in view of repeal of admit, if not denied specifically
Rule 2 of Order XIII by Act 46 of or by necessary implication, or

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stated to be not admitted in the this Order are not relevant for
pleading of that party or in his the purpose of the present case.
reply to the notice to admit
documents, shall be deemed to 13. Rules were framed by the
be admitted except as against a High Court in exercise of powers
person under a disability: conferred by Article 227 of the
Constitution of India and
Provided that the Court may, in Section 126 of Code of Civil
its discretion and for reasons to Procedure, 1908, for the
be recorded, require any guidance of Subordinate Civil
document so admitted to be Courts. Chapter X of the Civil
proved otherwise than by such Rules of Practice deals with
admission. documents. Rule 117 deals with
the inspection of documents by
(2) Where a party unreasonably party of the documents filed
neglects or refuses to admit a along with the plaint or written
document after the service on statement. Rule 119 deals with
him of the notice to admit inspection of documents by
documents, the Court may strangers.
direct him to pay costs to the
other party by way of 14. In respect of the list of
compensation. documents filed along with the
pleadings, Form No. 7 is
11. Rule 8 of Order XII deals prescribed under Rule 16 of the
with notice to produce Civil Rules of Practice. Rule 102
documents. Then comes Order thereof deals with production of
XIII dealing with production, documents. Sub-rule (2) of Rule
impounding and return of 102 says that the Court shall
documents. Rule 1 of the said not ordinarily receive any
order deals with production of documentary evidence in
original documents at or before possession or power of any
the settlement of issues, the party which should have been
copies of which were filed along but has not been produced on
with the plaint or written the due date, except in
statement. Rule 3 thereof deals exceptional circumstances and
with rejection of irrelevant or good cause is shown for the
inadmissible documents, and default. Rule 113 deals with
since it is relevant for the evidence and sub-rule (7)
purpose of the present case, it thereof deals with marking and
is extracted hereunder: certifying of exhibits. Sub-rule
(7)(c) indicates the procedure to
3. Rejection of irrelevant or be followed in respect of
inadmissible documents. The documents admitted in
Court may at any stage of the evidence, and it reads as
suit reject any document which follows:
it considers irrelevant or
otherwise inadmissible, (7)(c) The Court shall consider
recording the grounds of such the admissibility of the
rejection. documents referred in the
Affidavit of Examination-in-Chief
12. Rule 4 thereof deals with and endorse on the documents.
the endorsements on If admitted in evidence, the
documents admitted in following particulars, viz.,
evidence. Rule 6 deals with the
endorsements on documents (i) the number and title of the
rejected as inadmissible in suit.
evidence. The other Rules
relating to the documents under (ii) the name of the person who
filed the document and the

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exhibit number given by the plaint or the written statement,
Court. as the case may be. If they
want to file any document(s)
(iii) the date on which was subsequently, they have to seek
produced. the leave of the Court. In this
connection, the effect of non-
(iv) the statement of its having production of documents, which
been admitted. was repealed by Act 46 of 1999
with effect from 01.07.2002,
And the endorsement shall be should also be taken note. By
signed or initialed by the Judge. virtue of the said repeal, for the
effect of non-production of
15. Rule 115 deals with marking documents, one has to look into
of exhibits and it reads as sub-rule (3) of Rule 14 of Order
follows: VII CPC, which is already
extracted above. The plaintiff or
115. (79) Marking of Exhibits:- defendant is not precluded from
filing the documents at a later
(1) Exhibits admitted in stage. But he has to seek leave
evidence shall be marked as of the Court in order to receive
follows: those documents in evidence.

(i) if filed by the plaintiff or one 17. In the instant case, the
of several plaintiffs, with the party filed the list of documents
capital letter A followed by a on 30.04.2013 and filed the
numeral A1, A2, A3 etc. affidavit in lieu of chief
examination on 19.03.2014.
(ii) If filed by the defendant or Exs.A1 to A12 were marked on
one of several defendants with 21.03.2014. Out of the said
the capital letter B followed by a Exs.A1 to A12, Exs.A6 to A10
numeral, B1, B2, B3 etc. formed part of the list of
documents filed on 30.04.2013.
(iii) If court exhibits with the Though no leave of the Court
capital letter C followed by a was taken for marking the said
numeral C1, C2, C3 etc., documents forming part of the
said list and were marked
(iv) If third party exhibits, with without objection, now an
the capital letter X followed by a objection is taken by the
numeral X1, X2, X3 etc., learned Counsel for the
petitioner that one of the
(2) The exhibits filed by the documents mentioned at serial
several plaintiffs or defendants No. 6 of the said list ought not
shall be marked consecutively. to have been received in
evidence without the leave of
(3) If in a proceeding
the Court and without deciding
subsequent to the trial of a suit
its relevancy.
or matter, further exhibits are
admitted in evidence, they shall 18. Here we have to examine
be marked in accordance with whether receiving of documents
the above scheme with numbers amounts to admitting the
consecutive to the number on documents in evidence or what
the last Exhibit previously filed. is the meaning of documents
received in evidence. It is also
16. From a perusal of the above
to be examined with regard to
provisions, it is clear that it is
the nature of objections that
incumbent on the parties to the
can be entertained by the Court
suit to file the documents in
at the time of receiving the
their possession in the form of a
documents in evidence. The
list at the time of filing the

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following decided cases are of is this: Whenever an objection
some assistance. is raised during evidence taking
stage regarding the admissibility
19. In Bipin Shantilal Panchal v. of any material or item of oral
State of Gujarat, arising out of evidence the trial Court can
criminal proceedings, the make a note of such objection
practice of deciding objection and mark the objected
raised as to admissibility of document tentatively as an
evidence and then proceeding exhibit in the case (or record
further with the trial was found the objected part of the oral
to be unacceptable and it was evidence) subject to such
commented upon by the Court objections to be decided at the
as follows: last stage in the final judgment.
If the Court finds at the final
12. It is an archaic practice that stage that the objection so
during the evidence collecting raised is sustainable the Judge
stage, whenever any objection or Magistrate can keep such
is raised regarding admissibility evidence excluded from
of any material in evidence the consideration. In our view there
Court does not proceed further is no illegality in adopting such
without passing order on such a course. (However, we make it
objection. But the fall out of the clear that if the objection relates
above practice is this: Suppose to deficiency of stamp duty of a
the trial Court, in a case, document the Court has to
upholds a particular objection decide the objection before
and excludes the material from proceeding further. For all other
being admitted in evidence and objections the procedure
then proceeds with the trial and suggested above can be
disposes of the case finally. If followed.)
the appellate or revisional
Court, when the same question 14. The above procedure, if
is re-canvassed, could take a followed, will have two
different view on the advantages. First is that the
admissibility of that material in time in the trial Court, during
such cases the appellate Court evidence taking stage, would
would be deprived of the benefit not be wasted on account of
of that evidence, because that raising such objections and the
was not put on record by the Court can continue to examine
trial Court. In such a situation the witnesses. The witnesses
the higher court may have to need not wait for long hours, if
send the case back to the trial not days. Second is that the
Court for recording that superior Court, when the same
evidence and then to dispose of objection is re-canvassed and
the case afresh. Why should the reconsidered in appeal or
trial prolong like that revision against the final
unnecessarily on account of judgment of the trial Court, can
practices created by ourselves. determine the correctness of the
Such practices, when realised view taken by the trial Court
through the course of long regarding that objection,
period to be hindrances which without bothering to remit the
impede steady and swift case to the trial Court again for
progress of trial proceedings, fresh disposal. We may also
must be recast or re-moulded to point out that this measure
give way for better substitutes would not cause any prejudice
which would help acceleration of to the parties to the litigation
trial proceedings. and would not add to their
misery or expenses.
13. When so recast, the practice
which can be a better substitute

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20. This Court in T. Basavaraju being marked. It is curious to
(Died) per LRs v. T. Nagaratnam note that the very same
explained the words admitted in Presiding Officer, who directed
evidence occurring in Section 36 marking of Ex.B38 has passed
of the Stamp Act, 1899, and the impugned order and it has
held that it means admitted been noted in the impugned
after judicial consideration of order on that day, the question
circumstances relating to of admissibility of the
admissibility. In the said case, documents did not come up for
the suit was filed for partition of consideration and that question
the plaint schedule property. was not decided. Under these
When D.W.6 (3rd defendant) circumstances, the Court below
was being examined on went into the judicial
commission, a carbon copy of determination as to the
the family settlement deed admissibility of Ex.B38 and
dated 09.07.1987 was marked found that it is not admissible in
through him. Thereafter, evidence, unless and until it is
defendant Nos. 4 and 5 filed an properly stamped and
application objecting to the registered.
marking of the said document
on the ground that, unless the 20. In a matter like this, unless
said document is duly stamped and until there is a judicial
and registered, the same cannot determination, it cannot be said
be admitted in evidence. D.W.6 that it has been admitted in
resisted the said contention evidence, though it is marked.
stating that once the document Mere marking of the document
is marked, defendant Nos. 4 itself is not sufficient and there
and 5 cannot question the should be judicial determination
admissibility of the same. The as to the nature of the
trial Court ordered the petition document and its admissibility.
and directed the 3rd defendant Further, the words admitted in
to pay the stamp duty and evidence appearing in Section
penalty on Ex.B38, and 36 of the Stamp Act means
challenging the said order, a admitted after judicial
revision was filed in this Court. consideration of the
This Court, after considering the circumstances relating to the
decisions in Basavaiah Naidu v. admissibility. There shall be a
Venkateswarulu, Vemi Reddy judicial determination of the
Kota Reddy v. Vemi Reddy question whether the document
Prabhakar Reddy and R.V.E. can be admitted in evidence or
Venkatachala Gounder (supra), not for want of stamp duty etc.
the provisions of CPC, and the In this case, on the date when
Civil Rules of Practice, held as the document was marked, the
follows: learned Judge has not applied
his mind as to the admissibility
19. On 31-12-2003, the Court of the document and
below recorded "Heard. The said consequently, there was no
documents are marked as judicial determination in regard
Exs.B35 to B38. For report - 5- to the objection raised by
1-2004". In fact, there was no defendants 4 and 5. Merely
judicial determination as to the because the document was
nature of the document and its marked, it would not mean that
admissibility in evidence by the the objection raised by the
Court below on that day i.e., other side has been rejected. In
31-12-2003. Admittedly, Ex.B38 the instant case, there is
was marked through D.W.6 and absolutely no record that on
there was no endorsement by that day i.e., 31-12-2003 or any
the Court that the other side day before that, the trial Court
had no objection for the same determined judicially the

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question regarding the 23. In Musammat Sumitra Kuer
admissibility of Ex.B38. No (supra), the High Court of Patna
opportunity was given to the considered the case where a
other side and the document document, which was not
was mechanically marked admissible in evidence, was
without there being judicial tendered as evidence without
scrutiny. In fact, even objection, it was held to be
otherwise, the Court may, at inadmissible at the time of
any stage of the suit, reject any pronouncement of judgment. No
document, which it considers finding on point of law was
irrelevant or otherwise recorded, except stating that
inadmissible, recording the mere omission to object a
grounds of such rejection (Order document which is not in itself
XIII Rule 3 CPC). In this case, admissible as evidence does not
the same thing happened when constitute a documentary
a proper application was filed by evidence so as to be available to
the respondent-defendants 4 either party at the trial. In other
and 5. The application was words, it says that a document
considered and the impugned which is inadmissible and
order was passed. marked without objection can
be considered as to its
21. In Shalimar Chemical Works admissibility at a later point of
Ltd. v. Surendra Oil & Dal Mills time by the Court.
it was held that admissibility of
a document has to be decided 24. In Sait Tarajee Khimchand
at the stage of admission itself, v. Yelamarti Satyam Alias
instead of leaving it to be Satteyya it was held that mere
decided subsequently. When the marking of exhibits does not
trial Court provisionally dispense with proof in evidence.
admitted the photocopy of a
document subject to objection 25. In K. Amarnath v. Smt.
of proof of admissibility, it was Puttamma the law relating to
held that the photocopy should the documents under Order XIII
have been rejected at the Rule 2 CPC read with Section
beginning itself. 145 of the Evidence Act was
considered in proceedings
22. Learned Counsel for the arising out of the Karnataka
petitioner relied on Nori Srirama Rent Control Act, 1961. In view
Sastri (supra), wherein it was of the useful discussion made
held that the question of therein, the relevant portions of
admissibility of the documents the judgment are extracted
ought to be decided at the time hereunder:
of marking itself. But, it appears
that in the said case the Whenever the document is
objection relates to the sought to be marked in
improper stamping and evidence, the Court is bound to
registration of the case, which is consider the following three
not the case in the present aspects; (a) what is the nature
case. He also relied on National of the document; (b) whether it
Textile Corporation Ltd. (supra) bears the requisite Stamp duty
and submitted that the issue of under the relevant Stamp Law;
relevancy should be considered and (c) whether the registration
at the threshold itself and in the of the document is compulsory.
absence of any pleadings and The decision on the first
particulars of the document by question, that is identifying or
the plaintiff in his pleadings, the deciding the nature of the
said document cannot be document is necessary to decide
admitted in evidence. the other two questions relating
to Stamp duty and registration

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26. A document which has been allegedly executed by
marked only for the purpose of petitioner's father, ought not to
identification, is not admitted in have been permitted to be
evidence and cannot be looked confronted to petitioner in his
into for any purpose. It cannot cross-examination, without prior
even be used for deciding the production as required by law.
manner of entry into possession
or for determining the nature of 27. When a document is
possession. Assigning an exhibit admitted in evidence, it is
number only for identification marked in the manner
purposes without admitting it in prescribed in Order 13, Rule 4
evidence and without deciding of the CPC. When a document is
on the question of admissibility rejected as inadmissible in
and leaving the question open evidence, an endorsement has
for decision at a later stage, is a to be made as prescribed under
procedure neither contemplated Order 13, Rule 6 of the CPC.
under the Evidence Act, nor When a document is not
under the Code of Civil admitted, but is assigned a
Procedure. The Courts should number only for identification
desist from adopting such a purposes, then an endorsement
procedure. Such a procedure is to that effect should be made on
as irregular as marking a the document. Such
document subject to objection, identification number should not
reserving the question of be in the regular series of
admissibility to be heard at the exhibit numbers, that is Ex. 'P'
stage of arguments. Order 13 of series of plaintiff or petitioner,
CPC makes it clear that all or Ex. 'D' (or 'R') series of
documents on which the parties defendant or respondent, but
intend to rely on as substantive should be in a completely
evidence, should be produced different series. The Court shall
either with the pleadings or also note in the evidence and in
before settlement of issues, (In the order sheet that such
summary proceedings, where document is not admitted in
issues are not framed, the evidence, but is assigned a
documents should be produced number for purposes of
before commencement of identification only. In this case,
evidence), or thereafter with an the Trial Court has not noted on
application assigning reasons for the document that it is marked
non-production. Parties may for identification purposes only.
however produce a document In the order sheet for the day
for the limited purpose of (21-10-1997), the Trial Court
confronting it to a witness has recorded "P.W.1 fully cross-
during his cross-examination to examined, Exs, R-4 to R-7 are
contradict him or to refresh the marked during cross-
memory of a witness. It is clear examination". The procedure
from Order 13, Rule 2 of the adopted, to say the least, is
CPC read with Section 145 of irregular.
Evidence Act, 1872 that what
can be produced during cross- 28. When a document is
examination, to confront a produced and sought to be
witness to contradict him, is exhibited, the Court should
only his previous statement in decide whether it is admissible
writing or reduced into writing. or not immediately, so that the
A witness cannot therefore be parties will know whether such
confronted in cross-examination document could be relied on or
(without previous production as not. If a document is not
per law) a document executed admitted, by refusing to mark it,
by someone else. In this case, the party may take steps to let
therefore, the document in other relevant and

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permissible evidence to prove in mind that once a document is
the document. On the other admitted in evidence, it cannot
hand, if the document is marked be called in question thereafter
in evidence, the parties may not on the ground that it was not
choose to let in further evidence duly stamped. Once the Court
on that aspect. When the admits a document even
question of marking of the wrongly, such admission
document is left open, the becomes final and cannot be
parties will have to proceed with reopened. Hence, the need for
the evidence with considerable diligence not only on the part of
uncertainty. Therefore, Courts the opposite Counsel, but also
should consider and decide the on the part of the Court having
question of admissibility of a regard to the statutory
document sought to be obligation under Section 33 of
exhibited, before proceeding Karnataka Stamp Act.
further with the evidence. If the
Court has any doubt, it may 30. A combined reading of
hear arguments on the Sections 33, 34, 35, 37 and 41
question. of the Karnataka Stamp Act
requires the following procedure
29. A duty is cast upon every to be adopted by a Court while
Judge to examine every considering the question of
document that is sought to be admissibility of a document with
marked in evidence. The reference to the Stamp Act: (a)
nomenclature of the document when a document comes up
is not decisive. The question of before the Court, it has to
admissibility (with reference to examine and determine whether
Section 34 of Karnataka Stamp it is properly stamped. When
Act, or Section 35 of Indian the other side objects to it, the
Stamp Act and Section 49 of Court should consider such
Registration Act) will have to be objection and hear both sides;
decided by reading the (b) after hearing, if the Court
document and deciding its comes to the conclusion that the
nature and classification. The document has been duly
tendency to mark documents stamped, it shall proceed to
without inspection and admit the document into
verification should be eschewed. evidence; (c) on the other hand,
Even while recording ex parte if the Court comes to the
evidence or while recording conclusion that the document is
evidence in the absence of the not stamped or insufficiently
Counsel for the other side, the stamped, it shall pass an order
Court should be vigilant and holding that the document is not
examine and ascertain the duly stamped and determine the
nature of the document Stamp duty/deficit stamp duty
proposed to be marked and and penalty to be paid and fix a
ensure that it is a document date to enable the party who
which is admissible. The Court produces the document to pay
should not depend on objections the Stamp duty/deficit Stamp
of the other Counsel before duty plus penalty; (d) if the
considering whether the party pays the duty and penalty
document is admissible in the Court shall certify that
evidence or not. Section 33 of proper amount of duty and
the Stamp Act casts a duty on penalty has been levied and
the Court to examine the record the name and address of
document to find out whether it the person paying the said duty
is duly stamped or not, and penalty and then admit the
irrespective of the fact whether document in evidence as
an objection to its marking is provided under Section 41(2);
raised or not. It should be borne and the Court shall send an

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authenticated copy of the order of Charity Commissioner
instrument to the District is not per se the evidence of
Registrar together with a title inasmuch as the Charity
Certificate and the amount Commissioner is not under the
collected as duty and penalty, law competent to adjudicate
as provided under Section upon questions of title relating
37(1); (e) if the party does not to immovable property which
pay the duty and penalty, the determination lies within the
Court will have to pass an order domain of a Civil Court.
impounding the document and However, still the order has
send the instrument in original, relevance as evidence to show
to the District Registrar for that the property forming
being dealt with in accordance subject matter of the order of
with law as per Section 37(2) of the Charity Commissioner was
the Karnataka Stamp Act. claimed by the temple to be its
property but the temple failed in
31. In R.V.E. Venkatachala proving its claim. If only the
Gounder (supra), the Supreme claimant temple would have
Court held as follows: succeeded, the item of the
property would have been
One document A/30 is the directed by the Charity
photocopy of a certified copy of Commissioner to be entered into
the decision given by Charity records as property of the
Commissioner. This document charity, i.e. the temple, which
was tendered in evidence and finding and the entry so made,
marked as an exhibit without unless dislodged, would have
any objection by the defendants achieved a finality. On the
when this was done. The contrary, the appellant herein,
plaintiff has in his statement who claimed the property to be
deposed and made it clear that his and not belonging to the
the certified copy, though charity, succeeded in the claim
available, was placed on the asserted by him.
record of another legal
proceedings and, therefore, in 32. The other document is the
the present proceedings he was rent note executed by defendant
tendering the photocopy. There No. 2 in favour of plaintiff. Here
is no challenge to this part of also photocopy of the rent note
the statement of the plaintiff. If was produced. The defendant
only the tendering of the No. 2 when in witness box was
photocopy would have been confronted with this document
objected to by the defendant, and he admitted to have
the plaintiff would have then executed this document in
and there sought for the leave favour of the plaintiff and also
of the Court either for tendering admitted the existence of his
in evidence a certified copy signature on the document. It is
freshly obtained or else would nobodys case that the original
have summoned the record of rent note was not admissible in
the other legal proceedings with evidence. However, secondary
the certified copy available on evidence was allowed to be
record for the perusal of the adduced without any objection
Court. It is not disputed that the and even in the absence of a
order of Charity Commissioner foundation for admitting
is a public document admissible secondary evidence having been
in evidence without formal proof laid by the plaintiff.
and certified copy of the
document is admissible in 33. The abovesaid facts have
evidence for the purpose of been stated by us in somewhat
proving the existence and such details as would have been
contents of the original. An otherwise unnecessary, only for

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the purpose of demonstrating objection should be taken
that the objection raised by the before the evidence is tendered
defendant-appellant before the and once the document has
High Court related not to the been admitted in evidence and
admissibility of the documentary marked as an exhibit, the
evidence but to the mode and objection that it should not have
method of proof thereof. been admitted in evidence or
that the mode adopted for
34. Order 13 Rule 4 of the CPC proving the document is
provides for every document irregular cannot be allowed to
admitted in evidence in the suit be raised at any stage
being endorsed by or on behalf subsequent to the marking of
of the Court, which the document as an exhibit. The
endorsement signed or initialed later proposition is a rule of fair
by the Judge amounts to play. The crucial test is whether
admission of the document in an objection, if taken at the
evidence. An objection to the appropriate point of time, would
admissibility of the document have enabled the party
should be raised before such tendering the evidence to cure
endorsement is made and the the defect and resort to such
Court is obliged to form its mode of proof as would be
opinion on the question of regular. The omission to object
admissibility and express the becomes fatal because by his
same on which opinion would failure the party entitled to
depend the document being object allows the party
endorsed as admitted or not tendering the evidence to act on
admitted in evidence. In the an assumption that the opposite
latter case, the document may party is not serious about the
be returned by the Court to the mode of proof. On the other
person from whose custody it hand, a prompt objection does
was produced. not prejudice the party
tendering the evidence, for two
35. It was further held as reasons : firstly, it enables the
follows: Court to apply its mind and
pronounce its decision on the
Ordinarily an objection to the question of admissibility then
admissibility of evidence should and there; and secondly, in the
be taken when it is tendered event of finding of the Court on
and not subsequently. The the mode of proof sought to be
objections as to admissibility of adopted going against the party
documents in evidence may be tendering the evidence, the
classified into two classes:- (i) opportunity of seeking
an objection that the document indulgence of the Court for
which is sought to be proved is permitting a regular mode or
itself inadmissible in evidence; method of proof and thereby
and (ii) where the objection removing the objection raised
does not dispute the by the opposite party, is
admissibility of the document in available to the party leading
evidence but is directed towards the evidence. Such practice and
the mode of proof alleging the procedure is fair to both the
same to be irregular or parties. Out of the two types of
insufficient. In the first case, objections, referred to
merely because a document has hereinabove, in the latter case,
been marked as an exhibit, an failure to raise a prompt and
objection as to its admissibility timely objection amounts to
is not excluded and is available waiver of the necessity for
to be raised even at a later insisting on formal proof of a
stage or even in appeal or document, the document itself
revision. In the latter case, the which is sought to be proved

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being admissible in evidence. In tentatively and observing the
the first case, acquiescence questions till the completion of
would be no bar to raising the the trial of the case. Ruling as to
objection in superior Court. the admissibility of a document
to be received in evidence must
36. In Bada Bodaiah v. Bada be short one. If the ruling is
Lingaswamy, after considering rendered by a Court of Law,
Order VII Rule 14(3) and Order then, there should not be any
XIII Rules 1 and 2 of CPC, it further hindrance of the conduct
was held that mere non- of a trial. If need be, a fuller
mention of documents in plaint reason may be given in the
or subsequent incidental or Judgment as per decision
supplemental proceedings in the Ponnammal Ammal V. Modern
suit does not in any manner Stores, Tirunelveli through
affect power of the Court to Partner Mahadev Iyer and
grant leave to produce others, MANU/TN/0034/1949 :
documents at subsequent stage. AIR 1950 Madras 62.
Non-mentioning of the
documents sought to be 39. An objection that the mode
produced at the subsequent of proof is irregular or initial
stage is a curable defect. But, should be taken before the
the power to grant leave must document is admitted. When a
be exercised in rare cases and document is exhibited before
not in a routine manner. the trial Court, a party against
whom it is being brought on
37. The decision relied on by record is entitled to question it
the learned Counsel for the on the ground of its
petitioner in Balaji Adithi inadmissibility if after the
(supra) is not directly on the admission of a particular
point and it relates to document it is later on found to
impounding of documents. be an irrelevant or inadmissible
Similarly, the decision in G. one, in the eye of law, it may be
Sanjeeva Reddy (supra) relates rejected at any stage of the suit
to grant of leave by the Court as per Order 13 Rule 3 of Civil
with regard to the documents Procedure Code.
produced before the Court
subsequent to the filing of the 40. It is the duty of a Court of
plaint. The decision in Kalyan Law to exclude all irrelevant or
Singh Chouhan (supra) also inadmissible evidence even if no
relates to the pleadings of the objection has been taken by the
parties. The said decision opposite side.
relates to the election
proceedings. 41. At this stage, this Court
worth recalls the decision of
38. In Manickam v. Chinnasamy Hon'ble Supreme Court in Javer
the High Court of Madras Chand and others V. Pukhraj
elaborately considered the law Surana, MANU/SC/0036/1961 :
on this point and held as AIR 1961 SC 1655, wherein it is
follows: held as follows:

It is to be borne in mind that "Where a question as to the

the objections/questions as to admissibility of a document is
the admissibility of a certain raised on the ground that it has
document ought to be not been stamped or has not
determined by a Court of Law, been properly stamped, the
when they come up for party challenging the
consideration or determination admissibility of the document
instead of admitting the has to be alert to see that the
evidence in the first instance document is not admitted in

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evidence by the Court. The MANU/OR/0008/1983 : AIR
Court has to judicially determine 1983 Orissa 24 at page 25,
the matter as soon as the wherein it is held that 'objection
document is tendered in is mode of proof of document
evidence and before it is shall be taken when it is
marked as an exhibit in the exhibited by trial Court and not
case. Once a document has in appeal for the first time.'
been marked as an exhibit in
the case and has been used by 45. Further, in Kissen V. Ram
the parties in examination and 12 WR at page 13, it is held that
cross-examination of their 'if after admission of a
witnesses, S.36 comes into document which is subsequently
operation. Once a document has found to be irrelevant or
been admitted in evidence, as otherwise inadmissibility, it may
aforesaid, it is not open either be rejected at any time under
to the Trial Court itself or to a the rule.'
Court of Appeal or Revision to
go behind that order. Such an 46. Even an erroneous omission
order is not one of those judicial to object to an inadmissible
orders which are liable to be evidence does not make it
reviewed or revised by the same admissible, if the evidence per
court or a court of superior se is inadmissible under the
jurisdiction. Indian Evidence Act as per
MANU/RH/0019/1957 : AIR decision in Miller V. Madho 23 IA
1957 Raj 47, Reversed." 106.

42. In Prabhu Dayal V. Suwa Lal 47. As a matter of fact, only

and another, when a document is formally
MANU/RH/0025/1994 : AIR proved and admitted in
1994 Rajasthan 149, it is held evidence be marked as an
that 'The provision Order 13 exhibit Section 36 of the Indian
Rule 1 and 3 of Civil Procedure Stamp Act comes into operative
Code does not debar a Court play which enjoins that such an
from reopening the question of admission shall not be called
admissibility of the document into question at any stage as
already exhibited and further per decision Kuppammal V.
that the mode of proof could not Pethanna
be questioned.' MANU/TN/0331/1955 : AIR
1956 Madras 250. Order 13
43. The general plea in law is Rule 4 speaks of endorsements
that an objection must be raised on documents admitted in
before the document is admitted evidence which ought to be
during the course of the trial. strictly complied with, as opined
However, if a document which by this Court. However, it is to
cannot be admitted into be noted that the ingredients of
evidence because of the Order 13 Rule 4 has nothing to
impediment in law but the same do with the question whether a
is admitted into evidence particular document has been
without objection, always it is admitted in evidence to admit a
open to a Court of Law to arrive document in evidence, the
at a finding that the said endorsement as per Order 13
document is legally inadmissible Rule 4 is quite sufficient and no
one. express order as per Section
61(1) of the Indian Stamp Act is
44. This Court aptly points out not necessary as per decision
the decision in Dhruba Sahu Jageshar V. Collr,
(dead) and after him Nalumoni MANU/UP/0117/1966 : AIR
Sahu and another V. 1966 A 392 FB. In law, the
Paramananda Sahu, marking of a document as an

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exhibit on the side of one party iv) As held by the Supreme
does not dispense with its proof Court in R.V.E. Venkatachala
as per decision Sait Tarajee V. Gounder (supra), the objection
Yelamarti, MANU/SC/0022/1971 that the document which is
: AIR 1971 SC 1865. Even the sought to be proved is itself
unproved documents cannot be inadmissible in evidence can be
regarded as proved merely raised even at a later stage or
because an endorsement has even in appeal or revision.
been made by stamp as per When the objection relates to
decision Firoz V. Nawabkhan, mode of proof alleging the same
AIR 1928 L 342. Moreover, a to be irregular or insufficient,
mere omission to make the the objection should be taken
formal endorsement does not before the evidence is tendered
render a document duly proved and cannot be allowed to be
and exhibited the inadmissible raised at any stage subsequent
as per decision Gopal V. Sri to the marking of the document
Thakurji, MANU/PR/0002/1943 : as an exhibit. This later
AIR 1943 PC 83. objection is an objection relating
to the irregularity or
Ultimately, it held that the insufficiency.
marking of the documents,
subject to objection, is a curable v) In order to avoid delay in the
one. trial of the suit, the Court can
tentatively mark a document
48. A Division Bench of this and examine its admissibility
Court in IVRCL Assets & and the objection raised to it
Holdings Ltd., Hyderabad v. A.P. along with the pronouncement
State Consumer Disputes of judgment.
Redressal Commission,
Hyderabad held that 50. At this stage, it is relevant
unregistered and insufficiently to extract the passage from the
stamped document, if marked judgment of Vivian Bose, J. in
as a document, does not Sangram Singh v. Election
amount to admitting in Tribunal: (AIR p.429, para 16)
documentary evidence. The
difference between marking of "16. Now a code of procedure
document and admitting a must be regarded as such. It is
document in evidence was made procedure, something designed
out in the said decision. to facilitate justice and further
its ends: not a penal enactment
49. On the survey of the above for punishment and penalties;
decisions, the following points not a thing designed to trip
are deduced: people up. Too technical a
construction of sections that
i) A list of documents should be leaves no room for reasonable
filed along with the plaint or elasticity of interpretation
written statement and if the should therefore be guarded
parties want to file document against (provided always that
subsequently, they have to take justice is done to both sides)
leave of the Court. lest the very means designed
for the furtherance of justice be
ii) The documents, which are used to frustrate it."
marked, does not dispense with
their proof. (emphasis supplied)

iii) There is a difference 51. Since, in the instant case,

between marking of a document the order of the trial Court
and admitting the same in speaks of receiving of the
evidence. document only without passing

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a judicial order on its
admissibility, the defendant can
as well raise his objection as to
its admissibility at a later stage,
and the trial Court shall consider
the same and pass appropriate
orders thereon. The objection
relating to relevancy of the
document need not be decided
at the time of marking the
document. It relates to
admissibility and can be raised
by the defendant at a later
stage and should be decided by
the Court at the time of
pronouncement of judgment.
Though the plaintiff has not
sought leave of the Court while
filing the list of documents on
30.04.2013, subsequent to the
filing of the plaint, this Court
considers the said defect as an
irregularity and not an illegality.
Since Exs.A6 to A10 were
already marked from out of the
list of documents, it is assumed
that the trial Court has
permitted such filing of the
documents. However, the trial
Court, hereafter, should
scrupulously follow the
provisions of CPC while
receiving and marking the
documents.

52. The Civil Revision Petition is,

accordingly, disposed of. The
miscellaneous petitions pending,
if any, shall stand closed. There
shall be no order as to costs.

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