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1995 SCC OnLine Kar 209 : ILR 1996 Kar 136 : (1995) 5 Kant LJ 574 : 1996 AIHC
981
In the High Court of Karnataka
(BEFORE C.N. ASWATHANARAYANA RAO, J.)
Narasamma
Versus
Arjun M. Menda*
C.R.P. No. 1482 of 1995
Decided on July 3, 1995
KARNATAKA STAMP ACT, 1957 (Karnataka Act No. 34 of 1957) — Section 34: CIVIL
PROCEDURE CODE, 1908 (Central Act No. 5 of 1908) — Order 13 Rule 4 — Admissibility of
document: Duty of Court — Nothing to show application of mind of Court as to admissibility of
document & marking under Order 13 Rule 4(1) not made — Though no objection taken at the
time of marking of document as Exhibit, responsibility of Court in examining admissibility, not
absolved — Serious question ought to have been examined at the time of marking document —
Cannot be said document admitted in evidence — Question as to admissibility left open to be
decided by Trial Court at the time of final decision of suit.
Held :
There is nothing on record to show that the Court has applied its mind to the prior act of examining
whether the document Ex. P1 is admissible in evidence. The second act, namely, marking the
endorsement under Order 13 Rule 4(1) CPC also has not been made admittedly. It is no doubt true that
the defendants did not raise any objections at the time of marking the document in question as Ex. P1.
But, it does not absolve the responsibility placed on the Court in examining the document for
admissibility…. What is important to note is that the admissibility of the document Ex. P1 which is not
stamped was a serious question to be considered by the Trial Court at the time of marking the document.
There is nothing on record to show that the Trial Court had applied its mind consciously to the question
whether the document was admissible or not. By no stretch of imagination could it be said in this case
that the document has been admitted in evidence… Therefore, the impugned order passed by the Trial
Court rejecting IA XII cannot be sustained… the proper order that could be passed is to keep open the
entire
Page: 137
question of the admissibility of the document Ex. P1 leaving it to be decided by the Trial Court at the time
of the final decision of the suit.
(Paras - 13 & 14)
CASES REFERRED:
1. 1964 (2) Mys. L.J. 145 - (Dist)
Lakshmaiah v. Govindappa
2. AIR 1961 SC 1655 - (do)
Javerchand v. Pukhraj
3. 1992 (1) KLJ 191 - (do)
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Bhima Rao v. Channappa
4. (1969) 1 SCC 597 : AIR 1969 SC 1238 - (do)
H.S. Ltd. v. Dilip
5. AIR 1966 All 392 - (do)
Jageshar v. Collector
6. AIR 1971 All 434 - (do)
Guni Ram v. Kodai
7. AIR 1919 Nag 141 - (Foll)
Sitaram v. Thakurdas
8. AIR 1929 Mad 522 - (do)
Attili Venkanna v. Parasuram
9. AIR 1956 Mad 250 - (do)
Kuppammal v. Pethanna
10. AIR 1966 A.P. 184 - (do)
Kolli Eranna v. B. Thimmaiah
Advocates who appeared in this case :
Mr. N. Kumar for M/s Kumar & Kumar for Petitioners
Mr. Ashok B. Patil for R-1
ORDER
ASWATHANARAYANA RAO, J.:—
This is a defendants' Revision Petition against an order dated 18.2.1995 passed on I.A.
XII in O.S. No. 10234/83 on the file of the Court of the X Additional City Civil Judge, Mayo
Hall, Bangalore.
2. After hearing the learned Counsel for the parties on admission, since I find that the
matter can be finally disposed off at this stage itself, it is taken up for final orders.
3. The 1st respondent/plaintiff filed the suit in O.S. No. 10234/83 against the
petitioners/defendants 1 and 2 and respondents 3 to 5 who were defendants 3 to 5
respectively for the relief of specific performance of an agreement to sell. The defendants
resisted the suit. During the course of the recording of the deposition of the plaintiff, the
plaintiff tendered a letter dated 4.11.1980 to be marked in evidence. It was not a stamped
document. It was marked as Ex. P1. The case was adjourned for cross-examination. At
that juncture, the defendants 1 and 2 filed the application I.A. XII under Section 34 of the
Page: 138
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Karnataka Stamp Act, 1957 (hereinafterwards referred to as ‘the Act’) read with Section
151 of the Code of Civil Procedure praying:—
i) to determine the duty and penalty payable in respect of Ex. P1;
ii) to order that unless the duty and penalty is paid on Ex. P1, no further evidence can
be recorded;
and
iii) to order that Ex. P1 cannot be acted upon for any purpose.
The plaintiff opposed the application. After hearing the learned Counsel for both the
parties, the learned Trial Judge, by the order dated 18.2.1995 rejected the application.
Beng aggrieved by the said order, the defendants 1 and 2 have filed this Revision Petition.
4. I have heard Sri Kumar, the learned Counsel for the petitioner and Sri Ashok B. Patil,
the learned Counsel for the 1st respondent and have perused the records. Notice to other
respondents have been dispensed with (vide order-sheet dated 6.6.1995).
5. The learned Counsel for the petitioners has made available a copy of the application
I.A. XII and the affidavit filed with it and the objection filed to that application.
In the affidavit of the 1st defendant filed with I.A. XII, she has stated that Ex. P1 could
not have been marked as an exhibit since it is not stamped. She has stated that when the
evidence of P.W. 1 was recorded, her Senior Counsel could not be present and a Junior
Colleague of his, a new entrant to the Bar, was present, he did not raise any objection and
taking advantage of that situation, the plaintiff has got the document marked as an
exhibit. The plaintiff has objected to the application contending that the defendants,
having failed to bring the Senior Counsel on the date of evidence, now cannot put an
uncharitable blame on the plaintiff. After hearing the learned Counsel for the parties, the
learned Trial Judge took the view that it was for the defendants to have been vigilant and
to have objected to the marking of the document and when once the document is
admitted in evidence, its admissibility cannot be questioned at a subsequent stage.
Therefore he dismissed the application.
Page: 139
6. The learned Counsel for the 1st respondent, supporting the impugned order, urged
two contentions. Firstly he contended that the Revision Petition is not maintainable under
law. Secondly he supported the view of the Trial Court that the question of admissibility of
the document Ex. P1 cannot be reopened now.
7. With regard to the first contention, the learned Counsel for the 1st respondent relied
upon two Decisions. In N.S. Lakshmaiahsetty v. R. Govindappa1 , it is held as follows:—
“Where a document has in fact and in law had been admitted in evidence, Section 35
of Mysore Stamp Act comes into operation and it is no longer open to the original Court
to act under the proviso to Section 34 and levy duty and penalty.
The Court which could act suo motu under Section 58 is not the Court to which
appeals or references under the Stamp Act lie, but the Court to which an appeal or
reference arising out of the main proceeding lies under the Civil Procedure Code and the
Civil Courts Act.
Hence, where a document had been admitted by the Munsiff Court, the High Court
cannot act under Section 58 Stamp Act.”
(Emphasis supplied)
In Javer Chand v. Pukhraj Surana2 , it is held as follows:—
“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
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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, Section 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
Page: 140
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.”
8. As against these Decisions, the learned Counsel for the petitioners contending that
the Revision Petition is maintainable, relied upon two Decisions. In a later Decision of this
Court reported in 1992 (1) KAR. L.J. 1913 , it has been held that an order under Section 34
of the Act is revisable. The Decision in AIR 1961 SC 16552 , has no application to the facts
of the case on hand since its applicability depends upon the question whether Ex. P1 can
be said to have been admitted or not. I shall consider that aspect while considering the
second point. In view of the later Decision of this Court referred to above, I hold that the
Revision Petition is maintainable.
9. With regard to the 2nd contention the learned Counsel for the 1st respondent relied
on the Decision in AIR 1961 S.C. 16552 which is already referred to above and the
following Decisions. In Hindustan Steel Ltd. v. Dilip Construction Co.4 , it has been held as
follows:—
“The Stamp Act is a fiscal measure enacted to secure revenue for the State on
certain classes of instruments. It is not enacted to arm a litigant with a weapon of
technicality to meet the case of his opponents. The stringent provisions of the Act are
conceived in the interest of the revenue. Once that object is secured according to law,
the party staking his claim on the instrument will not be defeated on the ground of the
initial defect in the instrument.”
In Jageshar Naik v. Collector of Jaunpur5 , it has been held as follows:—
“Section 61(1) of the Stamp Act 1899 (Central Act which is analoglis to Section 34 of
the Karnataka Stamp Act 1957) does not require an express order declaring a
document to be duly stamped and admitting it in evidence. It covers an implied finding
that the document is duly stamped. When an instrument is admitted in evidence, it is
required to be exhibited, i.e., to be endorsed with the particulars mentioned in Rr. 4
and 6 of Order
Page: 141
13, Civil P.C. The reference in Section 61(1) to the making of an order admitting an
instrument in evidence is to the endorsing on it of the statement of its having been
admitted in evidence as required by O. 13, R. 4, Civil P.C.
Nor is it necessary that the order must further recite that the instrument is duly
stamped. There is a presumption in favour of the regularity of proceedings by a Court.
So, when a Court admits an instrument liable to be stamped in evidence and even
makes an express order “admitted in evidence”, it must be presumed to have found it
to be duly stamped.”
In Guni Ram v. Kodai6 , it has been held that:—
“An omission to mark a document admitted in evidence as exhibited and giving it a
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number is a mere curable procedural irregularity and not an illegality.”
10. The learned Counsel for the petitioners did not dispute the propositions of law laid
down in these Decisions. But he contended they have no application to the facts of the
case on hand because Ex. P1 in this case cannot be said to have been ‘admitted in
evidence’ even though it has been marked as an exhibit for identifying purposes. In this
regard he brought to my notice certain observations made by the Trial Court in the
impugned order and also relied on certain Decisions.
11. In para 7 of the impugned order, the Trial Court has observed as follows:—
“Admittedly, in the present case, no endorsement has been made by the Court as
provided under Order 13 rule 4(1) of C.P.C. on the document in question.”
The learned Counsel for the petitioners contended that when no such endorsement has
been made, obviously the document Ex. P1 cannot be said to have been admitted in
evidence. In support of this argument he relied on the following Decisions:
In Sitaram v. Thakurdas7 it has been held:—
Page: 142
“The expression “admitted in evidence” in Section 36 means the act of letting the
document in as part of the evidence as a result of judicial determination of the question
whether it can be admitted in evidence or not. In other words, the Court admitting it
must have applied its mind consciously to the question whether the document was
admissible or not:”
In Attili Venkanna v. Parasuram Byas8 it has been held:
“Placing Judge's initials on a document by a third person by means of a rubber
stamp cannot amount to initialling by the Judge.”
Further it is held:
“A document, although endorsed according to O. 13, R. 4, cannot be deemed to be
admitted in evidence, if that endorsement is made without the Judge having applied his
mind to its admissibility, and so can be rejected inspite of such endorsement:”
In the case on hand, the case of the 1st respondent is much weaker because admittedly
even the endorsement under O. 13, R. 4 C.P.C. has not been made on Ex. P1. In
Kuppammal v. Mu. Ve. Pethanna Chetty9 it has been held as follows:—
“The mere fact that the endorsement on the document as required under O. 13 R. 4
CPC has been made should not in every case be considered sufficient to hold that the
document has been admitted. In cases where no objection has been raised as to the
admissibility on the ground of insufficiency of stamps and an endorsement of admission
under O. 13, R. 4 is made and objection to such admissibility is not taken even at any
stage of the trial of the suit, it will not be open to any party to raise the objection to
appeal, before any other forum to which the matter might be taken up.
But to hold that by the mere mechanical act of stamping the endorsement under O.
13, R. 4 the Court has applied its mind as to the admissibility of the document, when
the first issue as in the present case, viz., whether the suit is maintainable as the
Page: 143
pronote does not bear the revenue stamp is pending decision, would be to deny the Court
the right to reject the document if it is found that it has been sufficiently stamped and
therefore inadmissible in evidence. So long as the objection has not been considered by
the Court, the endorsement under O. 13, R. 4 could be considered only to be mechanical
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act and not the result of the exercise of the judicial mind as to its admissibility.
But if in the course of the trial no objection is taken at all and even if the document
is insufficiently stamped and inadmissible in evidence but has been admitted in
evidence with the required endorsement under O. 13, R. 4 and even though in such a
case the Court could not be said to have consciously admitted it examining the question
of sufficiency of stamps the Court must in the circumstances be deemed to have
exercised its judicial mind and admitted it and the question cannot therefore be
reopened in appeal.
I am inclined to agree with respect with the view taken by the Bench of this Court in
‘AIR 1929 MAD 522 (B)’, that admission must be the result of the Court considering the
admissibility of the document if the admissibility is questioned during the trial and the
document must not be considered to be admitted by the mere endorsement under O.
13 R. 4 appearing on the document. In the present case, however, I have no doubt that
the fact that it has been endorsed under O. 13, R. 4 would not amount to an admission
of the document as the question as to the maintainability of the suit when the pronote
did not bear the revenue stamps was one of the matters in issue in the suit.”
In the case on hand, I.A. XII has been filed raising objections to the admissibility of Ex.
P1 and asking for a decision on the same before the cross-examination of P.W. 1 is taken
up.
12. In Kolli Eranna v. Bellamkondathimmaiah10 , it has been held as follows:—
“Order 13, R. 4(1) of the Civil Procedure Code prescribes that there shall be endorsed
on every document which has been admitted in evidence in the suit, the 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
Page: 144
admitted. The endorsement shall be signed or initialled by the judge. A document lacking
the last requirement cannot be said to be admitted in evidence.”
It is important to note that in this Decision the case relied on by the learned Counsel for
the 1st respondent reported in AIR 1961 S.C. 16552 has been referred to and has been
distinguished. It is pointed out at page 186 that:—
“A close perusal of the judgment of the Supreme Court in that particular case shows
that the documents in question, which were two hundis marked as Exs. P1 and P2, bore
the endorsements “admitted in evidence” under the signature of the Court. The
endorsements made on the two documents clearly shows that they were admitted in
evidence.”
In the case on hand also, admittedly there is no such endorsement on Ex. P1. Hence, the
learned Counsel for the petitioner was right when he submitted that the Decision in AIR
1961 SC 16552 , is not applicable to this case.
13. The learned Counsel for the 1st respondent tried to contend that as per the
wordings in O. 13, R. 4(1) C.P.C., the action taken by the Court in admitting the document
precedes the act of marking the endorsement on the document and therefore the act of
marking the endorsement is only a ministerial act, the omission of which is curable. In this
regard he brought to my notice the wordings of the said provision which reads as follows:
—
“O. 13. R. 4(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:—
xxx xxx xxx”
Even accepting this argument, it may be seen, as pointed out by the learned Counsel for
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the petitioner, there is nothing on record to show that the Court has applied its mind to
the prior act of examining whether the document Ex. P1 is admissible in evidence. The
second act namely marking the endorsement under O. 13, R. 4(1) C.P.C. also has not
been made admittedly. It is no doubt true that the defendants did not raise any objections
at the time of marking the document in
Page: 145
question as Ex. P1. But I do not think it absolves the responsibility placed on the Court in
examining the document for admissibility. The facts of the case disclose that according to
the plaintiff himself Ex. P1 represented an agreement of sale, a completed contract
whereas the defendants have contended that the document indicates only a proposal and
is not a completed contract. It is neither necessary nor proper for this Court to express any
opinion on this aspect as it may prejudice the case of either party before the Trial Court.
But what is important to note is that the admissibility of the document Ex. P1 which is not
stamped was a serious question to be considered by the Trial Court at the time of marking
the document. There is nothing on record to show that the Trial Court had applied its mind
consciously to the question whether the document was admissible or not. By no stretch of
imagination could it be said in this case that the document has been admitted in evidence.
Therefore, the Decisions relied on, on behalf of the 1st respondent, have no application to
the case. On the other hand, the Decisions relied on by the learned Counsel for the
petitioners are applicable and they fully support his contention that the document Ex. P1
cannot be said to have been admitted in evidence. Therefore, the impugned order passed
by the Trial Court rejecting I.A. XII cannot be sustained. The Revision Petition has to be
allowed.
14. Now a question arises as to what is the order that has to be passed in this Revision
Petition. I have set out the prayers made in I.A. XII in para 3 above. Obviously none of
those prayers can be granted because with regard to prayers (i) and (ii), the plaintiff
cannot be compelled to pay the duty and penalty if such duty and penalty is payable on
Ex. P1 under the law. It is for the plaintiff to decide. The prayer (iii) depends upon
whether the plaintiff pays the duty or penalty on Ex. P1 if it is payable under law. So, in
my opinion, the proper order that could be passed is to keep open the entire question of
the admissibility of the document Ex. P1 leaving it to be decided by the Trial Court at the
time of the final decision of the suit.
15. For the reasons stated above, the Revision Petition is allowed and the impugned
order passed by the Trial Court on I.A. XII on 18.2.1995 rejecting the application is set
aside. On I.A. XII it is ordered that the question of admissibility of Ex. P1 in evidence is
kept open to be decided by the Trial Court at the time of the final decision of the
Page: 146
suit. It is open to both the parties to urge whatever contentions they have on that
question. It is hereby made clear that the defendants may cross-examine P.W. 1 with
regard to Ex. P1 and it does not come in their way of urging their contentions regarding its
admissibility at the time of the final decision of the suit. The Trial Court is directed to give
an opportunity to the learned Counsel for both the parties to argue on this point at the
time of the final decision of the suit and decide the matter in accordance with law. I also
find it necessary to make it clear that in case the plaintiff, during the course of trial makes
an application for getting Ex. P1 impounded by the authorities under the Stamp Act, 1957,
the Trial Court should decide such an application on merits after hearing both the parties.
Parties to bear their own costs in this Revision Petition.
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———
*
C.R.P. No. 1482 of 1995.
1. 1994 (2) Mys. L.J. 145.
2. AIR 1961 SC 1655.
3.
Bhima Rao Dattaka v. Channappa Basavantappa Kalasur
4. (1969) 1 SCC 597 : AIR 1969 SC 1238.
5.
AIR 1966 Allahabad 392.
6.
AIR 1971 Allahabad 434.
7. AIR 1919 Nagpur 141.
8.
AIR 1929 Madras 522.
9.
AIR 1956 Madras 250 @ 253.
10.
AIR 1966 AP 184.
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