Hema Ram and Another vs Guman Singh and Other

This writ petition under Articles 226 and 227 of the Constitution of India has been preferred claiming the following reliefs:

“(A) That the order dated 28.01.2015 (Annexure-6) passed by Additional District Judge No.1, Barmer in Civil Original Suit No.30/2007 Guman

Singh v. Hema Ram. may kindly be quashed and set aside.

(B) That the order dated 22.01.2016 (Annexure-9) passed by Additional District Judge No.1, Barmer in Civil Original Suit No.30/2007 Guman Singh v.

Hema Ram. may kindly be quashed and set aside.

(C) That the agreement dated 20.08.1997 (Annexure-1) may kindly be declared as inadmissible in evidence and the exhibition of document may be

deleted.

(D) That any appropriate order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the present case

may kindly be passed in favour of the petitioners.

The chronology of the litigation at hand, as noticed by this Court, is that the plaintiffs/respondents filed a suit for possession and perpetual injunction

against the petitioners/defendants before the learned Additional District Judge, Barmer on 23.04.2007. The petitioners/defendants filed the written

statement to the said civil suit on 17.09.2007. The respondents/plaintiffs have filed rejoinder to the written statement on 03.05.2008. The

respondents/plaintiffs thereafter submitted their affidavits for evidence on 22.05.2009. Thereafter, the cross-examination of PW-2 Guman Singh was

started on 22.08.2015, but the same was kept reserved; the cross-examination though was re-commenced on 14.10.2015, but could not be completed

on that date.

The present contention before this Court is an application dated 23.11.2015 filed by the petitioners/defendants under Order 13 Rule 3 CPC praying

that the unregistered and unstamped agreement dated 20.08.1997 may be declared inadmissible in evidence, as it was not stamped. The respondents/

plaintiffs filed a reply to the said application on 24.11.2015. The application thereafter was rejected by the impugned order dated 22.01.2016 passed by

the learned trial court.

Learned counsel for the petitioners/defendants submits that it is a settled law that an unregistered and unstamped agreement, which is dated

20.08.1997 in the present case, could not have been admitted by the learned court below, while postponing the application of judicial mind, regarding its

registration, to the final hearing.

Learned counsel for the petitioners/defendants relied upon the precedent law laid down by the Hon'ble Supreme Court in Ram Rattan (dead) by

legal representatives v. Bajrang Lal, reported in AIR 1978 SC 1393, relevant portion of which reads as under:â€

“6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the

document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply

his mind to the objection raised and to decide the objects in accordance with law. Tendency sometimes is to postpone the decision to avoid interruption

in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection.

This, however would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided; it is

merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the court to decide

the objection. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the Stamp Act would come

into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been

duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that

it is not duly stamped, 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 and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument

could not be said to have been admitted in evidence with a view to attracting Section 36 (see Javer Chand v. Pukhraj Surana) [AIR 1961 SC 1655] .

The endorsement made by the learned trial Judge that “Objected, allowed subject to objectionâ€, clearly indicates that when the objection was

raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted. 7.

Mr Desai then contended that where an instrument not duly stamped or insufficiently stamped is tendered in evidence, the court has to impound it as

obligated by Section 33 and then proceed as required by Section 35 viz. to recover the deficit stamp duty along with penalty. Undoubtedly, if a person

having by law authority to receive evidence and the civil court is one such person before whom any instrument chargeable with duty is produced and it

is found that such instrument is not duly stamped, the same has to be impounded. The duty and penalty has to be recovered according to law. Section

35, however, prohibits its admission in evidence till such duty and penalty is paid. The plaintiff has neither paid the duty nor penalty till today.

Therefore, stricto sensu the instrument is not admissible in evidence. Mr Desai, however, wanted us to refer the instrument to the authority competent

to adjudicate the requisite stamp duty payable on the instrument and then recover the duty and penalty which the party who tendered the instrument in

evidence is in any event bound to pay and, therefore, on this account it was said that the document should not be excluded from evidence. The duty

and the penalty has to be paid when the document is tendered in evidence and an objection is raised. The difficulty in this case arises from the fact

that the learned trial Judge declined to decide the objection on merits and then sought refuge under Section 36. The plaintiff was, therefore, unable to

pay the deficit duty and penalty which when paid subject to all just exceptions, the document has to be admitted in evidence. In this background while

holding that the document Ext. I would be inadmissible in evidence as it is not duly stamped, we would not decline to take it into consideration because

the trial court is bound to impound the document and deal with it according to law.â€​

Learned counsel for the petitioners/defendants has also placed reliance on the judgment rendered by this Hon'ble Court in Gurpreet Singh alias

Dimple v. Rent Tribunal, Ganganagar, reported in AIR 2015 Rajasthan 217, relevant portion of which reads as under:

“11. In view of the discussion above, in the considered opinion of this court, the objection raised by the petitioner regarding admissibility of the

document and the necessity to impound the same on account of it being not sufficiently stamped, needs to be decided by the Rent Tribunal at this

stage.â€​

Reliance has also been placed by learned counsel for the petitioners/defendants on the judgment rendered by this Hon'ble Court at Jaipur Bench in

Krishna Leela Estate (P) Ltd. v. Kalyan, reported in 2014-15 (Supp.) RRT 697, relevant portion of which reads as under:

“5. I have considered the arguments advanced by ld. counsel for the parties and in my view, the trial court has rightly come to the conclusion the

the document ought to be impounded and sent to the proper authority for recovery of deficient stamp duty. Merely a document being executed in

affidavit cannot lead to the conclusion that the court has consciously applied its mind upon the issue of admissibility or the opposite party has waived its

right to raise objection with regard to the document being not duly stamped. It would have been another matter, if the matter had proceeded further

and the defendants had completed cross examination of the plaintiff and exhaustively cross examined the plaintiff on such agreement. In such fact

situation the issue of waiver may have been arisen but in the instant case exhibit has been marked in the affidavit of plaintiff and neither the court has

taken a conscious decision about the issue of admissibility nor cross examination of the plaintiff has been completed.

Sections 39 and 40 of the Rajasthan Stamps Act, provides as under:

“39 - Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty under this Act 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 shall, subject to all just exceptions, be admitted in evidence on payment of,

(i) 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,

and

(ii) a penalty of one hundred rupees or, ten times the amount of deficient portion thereof, which ever is higher.

(b) 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;

(c) nothing herein contained shall prevent the admission of any instrument as evidence in any proceeding in a criminal court, other than a proceedings

under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974).

(d) 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 36 or any other provision of this Act.

(e) nothing herein contained shall prevent the admission of a copy of any instrument or of an oral account of the contents of any instrument, if the

stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid.

(f) nothing herein contained shall prevent the admission of any instrument in evidence in any court when stamp duty on such instrument has already

been paid in advance in the form of a consolidated lump sum.

(g) nothing herein contained shall prevent the admission of any instrument in any court when such document has been executed by or on behalf of the

Government or where it bears the Certificate of the Collector as provided by section 36 or any other provision of this Act.

40 - 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 71, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly

stamped.â€​

A bare glance of the above provisions demonstrates that Sec. 40 only comes into play when a document is before cross examination

“admitted†in evidence which implies that the document was consciously admitted by the court and a decision upon the leviable stamp duty was

taken or the opposite party had participated in the proceedings and waived his right to raise objection thereof.

It may be further noted that as per proviso of Sec. 49 of the Registration Act, an unregistered document effecting immovable property which is

required to be registered, may be received as an evidence for any collateral transaction or in a suit for specific performance. However, the instrument

chargeable with the stamp duty under Section 3 but not duly stamped, could not be admitted in evidence for any purpose in accordance with Section

39 of the Act of 1998, quoted herein above unless the requisite duty is paid. Therefore the trial court rightly concluded that the document in question

ought to be impounded and sent to the proper authority for adjudication and recovery of proper stamp duty.

This Court, in the case of Jagdish Prasad v. Parshu Ram (supra), came across an identical situation and held that the trial court, admitting deed of

partition dated. 06/11/1993 in evidence being illegal, the same was set aside, though the said document had already been marked as Exhibit-8 but the

same was held to be inadmissible. This Court in the said case observed in Para 25 as to the procedure to be followed in such matters by the

subordinate courts and it would be appropriate to quote Para 25 & 26 of the said judgment, which provide ad-infra:â€"“Before concluding, the

court cannot resist itself from observing that there is absolutely an inconsistent practice being followed in the subordinate courts, in the matter of

dealing with the documents produced by the parties, for being read in evidence. It has been observed that most of the courts below in utter disregard

of the provisions contained in the C.P.C. And in the General Rules (Civil) 1986 framed by the Rajasthan High Court, admit the documents in evidence

as a matter of course, without following the due procedure and without deciding as to whether such documents are legally admissible in evidence or

not. It has also been observed that the exhibit numbers of the documents are being marked by the parties or witnesses themselves in the affidavits

filed by them in respect of their examination-in-chief, and that the courts also would not pass any orders as regards the admissibility of such

documents, though required as per the proviso to Rule 4 of Order XVIII of CPC. Neither the endorsements of particulars nor the signatures of the

concerned court are put on the documents admitted, though required under Order XIII, Rule 4 of CPC, read with Rule 51 to 55 of the General Rules

(Civil) 1986. This Court is constrained to observe that in none of the records of the suit proceedings called for from the courts below, one would find

any compliance of the said provisions. When such particulars are not mentioned on the admitted documents, it becomes very difficult to know as to in

which proceeding, on which date, by whom and how a particular document was admitted in evidence. The signatures or initials of the concerned

Judge who admitted the document in evidence also would not be found on any of the exhibited documents. Such a cursory, casual and shallow

practice being followed in the subordinate courts is not only improper but is illegal.

It is needless to say that it is incumbent on the part of the subordinate courts to follow the procedure laid down in the CPC and in the General

Rules (Civil) framed by the High Court for the guidance of the civil courts subordinate to it, while conducting the suit proceedings. It is also trite to say

that every disputed document before admitting in evidence and before exhibiting the same has to be legally proved by the party relying upon it. It is,

therefore, directed that the subordinate courts shall scrupulously follow the procedure laid down in the CPC and in the General Rules (Civil) and

consider the provisions contained in the Evidence Act and other relevant Acts, before admitting and marking the exhibits on the documents for being

read in evidence and shall also put their signatures/initials on the admitted and exhibited documents after verifying about the endorsements of

particulars as required under Order XIII, Rule 4 of CPC.â€​

In my view and in the light of the facts, situation and the authorities, the trial court has rightly come to the said conclusion and I do not find any

infirmity, illegality or perversity in the order impugned so as to call for interference of this Court.

Consequently, the writ petition, being devoid of any merit, is hereby dismissed with no order as to costs.â€​

Mr. G.R. Punia, learned Senior Counsel assisted by Mr. Rajendra Prasad appearing on behalf of the respondents/plaintiffs, however, submitted that

although the law, which tilts towards the admissibility of any document, only on the objection regarding its registration, having been decided prior to the

same having become admissible in evidence, is correct, but in this case, the learned Senior Counsel submits that the petitioners/defendants never

objected to the agreement having been not registered even from the initial period when the document in question was filed before the learned court

below.

Learned Senior Counsel for the respondents/plaintiffs also submitted that when the document was exhibited and the same was admitted, there was

no objection from the present petitioners/defendants.

Learned Senior Counsel for the respondents/plaintiffs further submitted that the learned court below itself, has rightly dealt with the matter, and

that, since the petitioners/defendants did not file the objections in time, and never challenged the order dated 28.01.2015 of the learned court below

rejecting their plea with liberty to raise all objections at a later stage, therefore, the said order has attained finality. Thus, as per learned Senior Counsel

for the respondents/plaintiffs, at this belated stage, once the opportunity to object has been postponed, then the petitioners/defendants cannot be

permitted to object the same at this stage, and will have to bear with the opportunity given by the learned court below that the effect of improper

stamping or inappropriate registration shall be seen at the time of final adjudication, and thus the petitioners/defendants have missed the bus to object

exhibition of the document in question.

Learned Senior Counsel for the respondents/plaintiffs further submitted that the respondents/plaintiffs themselves are the executor and the

executee i.e. both sides of the agreement and therefore, there cannot be any grievance to the petitioners/defendants against the agreement.

Learned Senior Counsel for the respondents/plaintiffs relied upon the precedent law laid down by the Hon'ble Supreme Court in Bipin Shantilal

Panchal v. State of Gujarat, reported in AIR 2001 SC 1158, relevant portion of which reads as under:

“12. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in

evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial

court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes

of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of

that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court.

In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case

afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the

course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for

better substitutes which would help acceleration of trial proceedings.

When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the

admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as

an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.

If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from

consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of

stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can

be followed.) 14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage,

would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long

hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final

judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the

case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation

and would not add to their misery or expenses.â€​

Learned Senior Counsel for the respondents/plaintiffs has also placed reliance on the precedent law laid down by the Hon'ble Supreme Court in

Shyamal Kumar Roy v. Sushil Kumar Agarwal, reported in (2006) 11 SCC 331, relevant portion of which reads as under:

“20. If no objection had been made by the appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be

permitted to turn round and contend that the said document is inadmissible in evidence. 21. The appellant having consented to the document being

marked as an exhibit has lost his right to reopen the question.â€​

Learned Senior Counsel for the respondents/plaintiffs has further placed reliance on the judgment rendered by this Hon'ble Court at Jaipur Bench

in Laxmi Narayan Singhal v. ADJ No.9, Jaipur City, Jaipur, reported in 2011 (3) WLC (Raj.) 427, relevant portion of which reads as under:

“5. Hence, having considered the submissions made by the learned counsel for the petitioner and carefully perused the relevant material on record

including the impugned order, it is noticed that one document i.e. agreement to sell was tendered in evidence on 17.8.2004 and exhibited and marked

as Ex. 1. The defendant, during the examination of plaintiff and his witnesses, did not raise any objection with regard to the inadmissibility of document

i.e. agreement to sell. He filed an application under Section 151 of CPC at the stage when the defendant was subjected to cross-examination. In the

matter of Shyamal Kumar Roy v. Sushil Kumar Agrawal (supra), it has been held by the Hon'ble Apex Court that Section 36 of Indian Stamp Act,

(which is analogous to Section 40 of Rajasthan Stamp Act, 1998), provides for a ‘stand alone’ clause. It categorically prohibits a court of law

from reopening a matter with regard to the sufficiency or otherwise of the stamp duty paid on an instrument, in the event the same has been admitted

in evidence. Only one exception has been made in this behalf, the provisions contained in Section 61 providing for reference and revision, in a case

under Section 33 of the Act.

However, it is made clear that the admissibility or inadmissibility of the document i.e. agreement to sell (Ex. 1) shall be determined by the learned

trial Court while deciding the suit finally as already observed by the learned trial Court vide his order dated 10th December, 2007.â€​

Reliance has also been placed by learned Senior Counsel for the respondents/plaintiffs on the judgment rendered by this Hon'ble Court at Jaipur

Bench in Jagdish v. Smt. Deep Shikha Garg, reported in 2013 (3) WLC (Raj.) 242, relevant portion of which reads as under:

“22. On consideration of the aforesaid judgments, it is now well settled that an unregistered sale deed/ agreement to sell is admissible in evidence in

a civil suit for specific performance on account of proviso to Section 49 of the Act of 1908. As regard the document is insufficiently stamped, it is also

well settled that when the document is exhibited and the entire trial has proceeded all along on the footing that the document was an exhibit in the case

and has been used by the parties in examination and cross examination of their witnesses, then Section 40 of the Stamp Act, 1998 comes into

operation and it is not open to be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly

stamped. The said principle is equally applicable to the appellate court which is exercising the same jurisdiction of the trial court. The defendant

appellant is debarred from taking such an objection at any stage of the same suit or in the present appeal on this ground, therefore, agreement to sell

(Ex.2) has rightly been admitted by the trial court in evidence.â€​

After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent laws cited at the Bar, this Court,

on factual matrix, finds that the petitioners/ defendants did not raise any objection to the filing of the document as well as exhibition and admission

thereof in evidence, and thus, when they missed the bus, then the learned court below has rightly held that the objection subsequently taken could only

be decided at the last stage of the trial.

This Court also finds that the precedent laws cited by learned counsel for the petitioners/defendants are not applicable to the facts of the present

case because those are pertaining to consideration of the objections at the initial stage where the stamp duty was deficient, whereas in the present

case, objections for the stamp duty itself were not raised at the appropriate stage.

In view of the above, no case for making any interference in the present writ petition is made out.

Consequently, the present writ petition is dismissed. However, the right of the petitioners/defendants to get their objections regarding effect of non-

registration and non-payment of the proper stamp duty considered at the final stage, which has already been granted by the learned trial court, shall

remain open. The peculiar circumstances of the case, where the objection itself was not raised by the petitioners/defendants at the appropriate stage,

is the prime consideration for passing the aforementioned order. All pending applications also stand dismissed.