B.K.Thapar and another vs Vijay Kumar and another

(1) This appeal under Letters Patent is directed against the judgment dated May 24, 1975 of the Hon'ble Single Judge (Mufti BahaudDin Farooqi

J) of this court dismissing the application of the defendants appellants dated May 19, 1975. Two applications one dated 19th May 1975 and the

other dated 20 may 1975 were filed by the defendants 1 and 2 respectively before the learned Judge. Application dated May 20, 1975 sought the

rejection of the plaint on the grounds mentioned therein with which we are not however concerned as that is not the subject matter of the appeal

before us, the appeal against that order having been dismissed in limine by us, The subject matter of the present appeal before us in the application

dated May 19, 1975. It was filed under sections 33/35 of the Jammu and Kashmir Stamp Act read with Order 13 Rule 3 of the Code of Civil

Procedure. The appellants prayed inter alia that the court may impound and declare the lease deed dated Sept: 1974 as inadmissible in evidence.

The prayer was grounded on the plea that the lease deed was improperly stamped and therefore, could not be admitted in evidence. The learned

Judge by his order under appeal dismissed the application and observed that the matter was covered by a preliminary issue and the court had

already declined the prayer of the defendants to allow issue No. 4 being tried as a preliminary issue (vide Order dated April 21, 1975) and as the

question sought to be raised in regard to the defect in stamping the lease deed was covered by the appropriate issue, therefore, it was hardly

necessary co go into this question at this stage of the suit. The court further observed that it was also a case which involved the examination of a

latent defect which required extrinsic evidence to be recorded in order to find out whether the document was or was not duly stamped. As regards

the objection raised by the defendants appellants that the plaintiffs would seek the admission of the instrument of lease in the course of their

evidence and if the document is admitted in evidence and exhibited then their object would be frustrated as they would not be able to raise the

objections subsequently in view of the provisions of Sec. 36 of the Stamp Act, the learned Judge observed that when such an occasion would arise

and the document is produced during the course of evidence the document could be received and exhibited tentatively and such tentative and

provisional reception of the document would not amount to its admission within the meaning of Section 36 of the Stamp Act. In view of the learned

Judge it was therefore, neither legal nor proper to decide the question of the admissibility of the document forthwith or even allow the question to

be cried as a preliminary issue. He consequently dismissed the application,

(2) Aggrieved by this judgment, the defendants have come up in appeal before this court.

(3) Very lengthy arguments were addressed at the bar in order to sustain the respective stands taken by the parties in the appeal.

(4) Appearing for the respondents Mr. Gupta has raised a preliminary objection that no appeal lies against the order of the dismissal of the

application of the defendants pissed by the learned Judge inasmuch as if is neither covered by Sec. 104 nor by Order 43 Rule 1 of the Code of

Civil Procedure nor by Cl 12 of the Letters Patent. The proposition is canvassed that the subject matter of the appeal has not decided any issue in

the case nor have the rights of the parties been affected by such an order. The appellants sought to recall the earlier order of the court by moving

the application on May 19, 1975. No appeal was preferred against that order. The suit of the plaintiffs has proceeded and will proceed inspite of

the dismissal of the application of the defendants. In view of this the appeal, it is contended, is not maintainable. Reliance has been placed on 35

Madras page 1, AIR 1963 JandK 71, AIR 1952 Nag. ?6 and on some other authorities. Mr R. P. Sethi has sought to raise another preliminary

objection that there is no forum which is competent to hear this appeal. His argument is that Cl. 12 of the Letters Patent undoubtedly gives right of

appeal to a party aggrieved by the judgment given by a Single Judge of this court but under the said clause the appeal could be heard by Board of

Judicial Advisothers which no longer exists, therefore, when no forum exists, the appeal cannot lie to the Division Bench of this Court.

(5) Before we dispose of the preliminary objection raised by Mr. Gupta, it is pertinent to decide the preliminary objection of Mr. Sethi. Clause 12

of the Letters Patent reads as follows :

And we do further ordain that an appeal shall lie to the said High Court of Judicature from the judgment (not being a judgment passed in exercise

of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to the superintendence of

the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the

exercise of the power of superintendence) of one Judge of the said High Court or one Judge of any Division Court and that notwithstanding

anything hereinbefore provided an appeal shall he to the said High court from a judgment of 'one Judge of the said High court one Judge of any

Division court, consistently with the provisions of the Civil Procedure Code, made in the exercise of appellate jurisdiction in respect of a decree or

order made in the exercise of appellate, jurisdiction by a court subject to the superintendence of the said High Court where the Judge who passed

the judgment declare that the case is a fit one for appeal; but that the right of appeal from other judgments of the said High court or of such Division

court shall be to us our Heirs or successothers and be heard by our Board of Judicial Advisothers for report to us.

(6) It appears that the learned counsel has misread the clause and has sought to place an interpretation of the language of Clause which is not

warranted. Clause 12 expressly confers right of appeal on a person aggrieved by the judgment of a Single Judge of the High court and the forum is

also provided therein. It is only when the judgment is given by the Division Bench or by a full it Bench that an appeal was provided before the

Board and as the Board has ceased to exits therefore, its place is now taken by the Supreme Court of India and an appeal can be filed before the

Supreme Court in cases in which right of appeal exists or leave to appeal is granted by the High Court. In view of this it is quite manifest that there

is no substance in the preliminary objection raised by Mr. Sethi.

(7) The preliminary objection raised by Mr. Gupta also cannot prevail on the twin ground that appeal is competent under section 61 (5) of the

Jammu and Kashmir Stamp Act. It is worthy to mention here that this Clause (5) does not exist in the Indian Stamp Act. Clause (5) of Section 61

provides an appeal against 'any order' made by the court under the provisions of the Stamp Act. The Order under appeal dismissed the application

of the defendants under section 33 of the Stamp Act being an order under the Stamp Act is therefore, appealable. Even otherwise the order is

appealable as it can be termed as a judgment within the meaning of Clause 12 of the Letters Patent. The question as to what orders can be termed

as judgments under the Letters Patent has been the subject of discussion before the High Court in India as also before this Court. In AIR 1965

JandK U8 this court observed that the term 'judgment' under Letters Patent should be construed liberally and an order deciding the issue between

the parties affecting the merits of the case should be considered as a judgment. An order which decides the questions of vital importance and

effects the very root of the case, such an order is a judgment within the meaning of Clause 12 of the Letters Patent. In AIR 1969 1andK 52, AIR

1955 Bom 266 and AIR 195 Nag 357 (FB) the view has been expressed that an order even if I does not finally dispose of the suit protanto, is a

judgment if it determines the rights of the parties. A Full Bench of Allahabad High Court in AIR 1960 All. 692 has held that a judgment under

Clause 10 of the Letters Patent of that court included the final judgment, a preliminary judgment, and an interlocutory judgment. The term

'judgment' did not necessarily exclude the order. The order of a Single Judge of the High Court dismissing an appeal against an order granting a

temporary injunction was an order which determined the rights of the parties. In AIR 1964 A. P. 16 a Full Bench of the Court held that a decision

refusing to review an order is a judgment within the meaning of the relevant clause of the Letters Patent In AIR 1961 S C. 946 it has been laid

down that a review application dismissed by a Single Judge of the High Court under U. P. Agriculture Income Tax Act is a judgment within the

meaning of Cl 10 of the Letters Patent. The authority of this court reported in AIR 1968 JandK 71 and relied upon by the learned counsel for the

respondents does not help the respondent and improve his case because that was a case where in the order under appeal all that the Single Judge

had said was that the additional issue was to be tried alongwith the other issue already framed in the case. It was observed that this could not

constitute a matter decided. The Single Judge had disposed of a matter which was a mere step towards obtaining the final adjudication in the suit

therefore, his order could not be designated as a judgment. That indeed is not the case before us. Here the learned Judge has dismissed the

application of the defendants u/s 32 of the Stamp Act and has refused to consider forthwith the question of judicially determining the admissibility

of the instrument of lease and has postponed its consideration and has further observed that the document could be exhibited and admitted

tentatively or provisionally into evidence. He has also refused to review his earlier order, therefore, on the basis of the authorities cited above his

order under appeal could clearly be designated as a judgment within the meaning of Cl. 12 of the Letters Patent. It is pertinent to refer here that the

learned Judge has himself characterised his order 'Judgment' m the opening words of the order which runs as under :

This judgment will govern the disposal of two applications one dated 19575 and the other dated May 20, 1975...

The preliminary objection raised by Mr. Gupta is therefore overruled.

(8) Coming to the merits of the case, I find that the apprehensions entertained by the appellants that once the document is allowed to be admitted

into evidence and exhibited their defence in the case may be jeopardised are not unfounded. It is true that there is an issue raised in the case which

deals with the question of inadmissibility of the document. According to the learned Judge this issue will be decided at the appropriate stage. We

however, do not question the jurisdiction and the power of the learned Judge to decide the preliminary issue in the case at the appropriate time but

an important question does arise for consideration in the present case which has got beating on Sec 36 of the Stamp Act. When a document is

sought to be admitted in evidence by a party and is to be exhibited and an objection is raised by the other side as regards its inadmissibility that

requires judicial determination of the question. Consideration of this question cannot be postponed because there is an issue already framed in the

case. The existence of an issue cannot override the consideration as also the principle and the policy underlined in Sec. 36 of the Act. The section

categorically requires that the question of admissibility of an instrument must be decided forthwith, for otherwise if the document is let in evidence

inspite of objection, its admissibility cannot be called in question at any subsequent stage of the suit. Indeed the recent pronouncement of the

Supreme Court on the question make it abundantly clear that where a question as to the admissibility of a document is raised on the ground that it

is not properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court rightly or wrongly decides

to admit the document into evidence, so far as the parties are concerned, the matter is closed. These observations of their Lordships are

incorporated in AIR 1961 SC 1955 Therefore, notwithstanding the existence of an issue on the question of admissibility it becomes the duty of the

court to decide the question of admissibility of the document then and there when the document is sought to be admitted in evidence. During the

course of arguments a question was put to the learned counsel for the respondents whether in the course of evidence be would get the instrument

of lease admitted into evidence and also exhibited as provided by Order 13 Rule 4 of the C. P. C. which he replied in the affirmative but he

qualified his statement by submitting that this would be subject to the judicial determination of the question at the final stage of the case when all

preliminary issues are decided. In other words he submitted that the instrument of lease could be admitted into evidence provisionally or tentatively.

We are afraid that this course of action is not warranted by law. The question of consideration of admissibility of an instrument cannot be

postponed and the document cannot be admitted provisionally into evidence. As pointed out by their lordships of the Supreme Court (AIR 1961

SC Supra) the language of Sec : 36 of the Stamp Act is categorical. It admits no exception, Sir George Rankin in 128 I. C. 187 while deciding the

principle underlined in Sec : 36 of the Scamp Act observed as follows :

On the merits of the appeal it appears to me that Sec : 36 Stamp Act makes is reasonably clear that the instrument having once been admitted in

evidence is not to be called in question at any stage of the same suit. The Special Judge hag seen this section but has thought to avoid the

consequence of it by taking notice of an affidavit in which it is said that the tenure holders did object when the document was tendered and that

there was a discussion as to its admissibility. The learned Judge has entirely failed to see that u/s 36 it matters nothing whether it was wrongly

admitted or rightly admitted or admitted without objection or after bearing or without hearing such objections. These stamp matters are really no

concern of the parties, and if the objection was taken at the time when the record was made up by the trial court, there it might be rejected, if not,

the matter stopped there.''

(9) The same view has been expressed by a Division Bench of the Patna High Court reported in AIR 1937 Patna 72. The court held that where a

Judge admits an instrument in evidence by endothersement then' u/s 36 it matters nothing whether a document was rightly or wrongly admitted or

admitted without objection or after hearing or without hearing such objection. Again in AIR 1939 All 588 a Division Bench of the said court

observed that there is nothing in section 36 of the Act to warrant the conclusion that the section has application only to cafes in which the court has

admitted the document after consciously applying its mind to the question of its admissibility. Therefore, in order to alley the fears of the appellants

and also to avoid any future controversy it will not only be appropriate but also legal and consistent with the observations of the Lordships of the

Supreme Court that there must be a judicial determination of the question of the admissibility of the instrument as soon as it is tendered in evidence.

The postponement of this question so as to coincide with the determination of the other preliminary issues cannot be said to be warranted in view

of the language of Sec : 36 of the Stamp Act. By acceding to the argument of the appellants and by allowing the application u/s 33 of the Stamp

Act forthwith would in our opinion not only advance the cause of justice but would also go a long way in facilitating the expeditious disposal of the

case which the Hon'ble Supreme Court has insisted upon. The consequence of not considering the question of admissibility of the instrument of

lease forthwith are obvious for if this point is allowed to be decided at the final stage and meanwhile the document is allowed to be admitted into

evidence and if in the end the court holds that the document is inadmissible in evidence or requires to be impounded, it may have the effect of

protracting the fair trail of the case and may give rise to several complications.

(10) Apart from the pleas based on the Stamp Act, no other point was canvassed before us by the learned counsel for the parties.

(11) For the foregoing reasons we are of the view that the learned Single Judge should not have dismissed the application of the defendants dated

May 19, 3975 under section 33 of the Stamp Act in so far as the limited question of the determination of the admissibility of the document based

on the plea that the lease deed was improperly stamped and therefore, inadmissible in evidence, was concerned.

(12) We accordingly allow the appeal to the extent indicated above and set aside the judgment of the learned Single Judge dated May 24. 1975

only in so far as it relates to the aspect of the matter under the Stamp Act. The learned trial Judge will at the time when the lease deed in question is

tendered or produced in evidence judicially determine forthwith the admissibility of the said document on the basis of the plea raised that it has not

been properly or sufficiently stamped.

(13) Parties are directed to appear before the learned trial Judge on July 16, 1975 at Srinagar for orders.