Whether it is not permissible for court to eschew exhibited document from record of case?

IN THE HIGH COURT OF KERALA

C.R.P. No. 479 of 2010

Decided On: 22.06.2011

Lakshmanan, T.C. Vs. Vanaja and Ors.

Hon’ble Judges/Coram:N.K. Balakrishnan, J.

Citation: 2011 (3) KLT 347 : 2011 (3) KLJ 406 : ILR 2011 (3) Ker. 228 : 2011 (3) KHC 86

1. This revision petition is filed by the Plaintiff in a suit for recovery of money. The suit document dated 31-1-2007, according to the Petitioner, is only an agreement. In the written statement the Defendant contended that it is a bond and since it is insufficiently stamped it is inadmissible in evidence. No specific issue was raised at that time regarding the admissibility of the said document. During trial affidavit was filed by the Plaintiff in lieu of chief examination. It is submitted by the learned Counsel for the Petitioner that before starting cross-examination no objection was raised by the Defendant regarding the admissibility of the said document. It was marked as Ext. A-1. Questions were also put to the Plaintiff in cross-examination touching upon Ext. A-1. After the evidence was closed the case was argued by both sides and was posted for judgment.

2. The Petitioner contends that the learned Munsiff suo motu reopened the case and passed the impugned order impounding Ext A-1. The Court below came to the conclusion that though the document is styled as agreement the recitals would show that it is actually a bond. Learned Counsel would submit that the Court below was not justified in passing the impugned order since Ext. A-1 was marked and admitted in evidence without any objection from the side of the Defendants.

3. Section 36 of the Indian Stamp Act reads as follows:

Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.
There is no dispute that Ext. A-1 is not a document, the admissibility of which can be questioned under Section 61 of the Indian Stamp Act. It was held by the Hon’ble Supreme Court in Javer Chand v. Pukhraj Surana MANU/SC/0036/1961 : A.I.R. 1961 S.C. 1655 that;

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 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.
4. Learned Counsel for the Petitioner would submit that in the light of the authoritative pronouncement of the Four Judges Bench of the Hon’ble Supreme Court the Court below was not justified in passing the impugned order. There was no case for the Respondent that before marking Ext. A-1 any objection was raised as to the admissibility of Ext. A-1. Since the affidavit was filed in lieu of chief examination, through which documents were sought to be received in evidence, before starting cross-examination the trial court has to record that an affidavit has been filed in lieu of chief examination and that such and such documents have been marked. It is not to be done mechanically. The Court has to apply its mind while marking the documents to ensure that those documents have been properly admitted in evidence. Simply because the counsel appearing for the other side did not raise any objection the Court is not absolved of its duty to see whether the marking of the documents was done correctly and whether any inadmissible document was sought to be admitted in evidence. If the Court finds that any inadmissible document, especially a document which cannot be admitted in evidence as it is unstamped or insufficiently stamped, is sought to be admitted, it should be brought to the notice of the counsel appearing for the parties and an order should be passed with regard to the same. It is not a case where the documents were tentatively marked, subject to objection regarding the admissibility and the ruling as to the admissibility of the same happened to be deferred, as it warranted a detailed argument. The Apex Court in the decision in Bipin Shantilal Panchal v. State of Gujarat 2000 (1) S.C.C. 1158 has held that such a procedure can be resorted to. Therefore, though document can be admitted tentatively reserving ruling on the admissibility to a later stage, in the case on hand no such objection was raised; on the other hand, it is argued by the learned Counsel for the Respondent that questions were put to P.W.1 with regard to the relevancy and other aspects of that document treating that document as having been properly admitted.

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5. Guidelines were issued in the decision in Dr. K.K. Johny v. K.P. James and Anr. MANU/KE/0209/2006 : 2006 (3) K.L.T. 368 with regard to the procedure to be followed when affidavit in lieu of chief examination is filed in Court. In Dr. Johny’s case necessity of reading the chief affidavit in Court before commencement of cross-examination and to obtain affirmation of the deponent to avoid any controversy was highlighted. Similarly it was also pointed out that while the chief affidavit is so read, the Court must rule on the objections, if any raised by the adverse party. Such instances may occur when a witness is examined on commission and inadmissible documents are attempted to be incorporated in evidence. Procedure to be followed in such cases was stated by this Court in Palodu Ravi v. Mangot Radhakrishnan 2002 (3) K.L.T. 557. It is not necessary to reiterate the guidelines or directions issued by this Court in those two decisions but would only remind the subordinate courts of the necessity to follow those directions lest this sort of controversy should sprout up.

6. The decision of the Apex Court in H. Siddiqui v. A. Ramalingam MANU/SC/0174/2011 : 2011 (4) S.C.C. 240 has no application to the facts of this case since in that case the apex court was considering whether the secondary evidence produced by the Respondent was admissible as the original document was not produced at any time nor was any factual foundation laid for giving secondary evidence and hence it was held that it was not permissible for the court to allow a party to adduce secondary evidence and as such secondary evidence relating to the contents of a document is inadmissible until the non-production of the original is accounted for and further it was held that mere admission of a document in evidence does not amount to its proof. It was held therein that the Court has an obligation to decide the question of admissibility of a document in secondary evidence before making the endorsement thereon. In that case the Respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof. Following the decision in State of Bihar v. Radha Krishna Singh MANU/SC/0303/1983 : A.I.R. 1983 S.C. 684 it was held that a document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.

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7. In the decision in Ram Rattan v. Bajrang Lal MANU/SC/0318/1978 : A.I.R. 1978 S.C. 1393 it was held that if a document is marked in evidence subject to objection it would not mean that the objection as to admissibility on the ground that the instrument is not duly stamped is judicially decided, but it is merely postponed and in such a situation at a later stage before the suit is finally disposed of it would be obligatory upon the Court to decide the objection. In the case on hand it is not a case where the document was tentatively marked or marked subject to objection. No objection was raised by the Defendant and as such the decision cited above is also not applicable to the facts of this case.

8. Order XIII, Rule 4 of Code of Civil Procedure provides that there shall be endorsement on every document which has been admitted in evidence in the suit the particulars mentioned therein and that the endorsement shall be signed or initialed by the Judge. Therefore, if the document having been admitted is endorsed by the Judge it should be presumed that no objection was raised. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend the document being endorsed as admitted or not admitted in evidence. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes; (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. A prompt objection does not prejudice the party tendering the evidence, because it enables the Court to apply its mind and to render its decision on the question of admissibility then and there and secondly in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party would be available to the party leading the evidence (vide R.V.E. Venkatachala Gounder v. Arul Migu Viswesaraswamy & V.P. Temple 2003 S.A.R. (Civil) 929).

9. The expression ‘admitted in evidence’ occurring in Section 36 of the Indian Stamp Act 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. The Court must apply its mind to the question whether the document is admissible or not. It was pointed out that had the Court below, before commencement of cross-examination, read the chief affidavit in Court and asked whether the Defendant has got any objection in admitting the disputed document or had the Court gone into the question whether the document was sufficiently stamped or not, this controversy would not have arisen at all. The learned Counsel for the Petitioner would submit that, here the document was proved and tendered in evidence and was marked as Ext. A-1 to which no objection was raised by the Defendant before the commencement of the cross-examination or even in the course of the argument. In order that a document may be considered as ‘admitted in evidence’ the Court should have applied its mind to the question of admissibility from the point of view of the Stamp Law, but once the Court rightly or wrongly decides to admit a document, so far as the parties are concerned, the matter is closed and the admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument had not been duly stamped.

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10. Even though in the written statement filed by the Defendant it was contended by the Defendant that the document in question is only a bond and cannot be admitted as it is insufficiently stamped, no such objection was raised when the document was tendered in evidence. Where the document had been put to the witness and the Court had relied upon the statement of the witness it cannot be held that there was no application of the judicial mind, so much so, the contention that there was only mere marking under Order XIII, Rule 4 Code of Civil Procedure and not admission of the document in evidence cannot be sustained. It was after the document was formally proved that the endorsement referred to in Rule 4 of Order XIII was made and as such it cannot be said that the document was not admitted in evidence. When a document has been admitted in evidence and exhibited it is not open to the Court to eschew that document from the record on account of the subsequent discovery that the document was insufficiently stamped.

11. It was held by a Division Bench of this Court in Ettithara Warrier v. Kochu Narayana Menon 1962 K.L.T. 228.

Once a document has been admitted in evidence, its admissibility cannot be questioned on the ground that it has not been duly stamped. The expression ‘admitted in evidence’ means ‘let in as part of the evidence’. To hold that a document should not be considered as having been admitted in evidence unless the court has applied its mind to the question of admissibility from the point of view of the stamp law will involve an addition to the section of the words ‘after judicially considering the question of sufficiency of stamp’ after the words ‘admitted in evidence’. Once a court, rightly or wrongly, decides to admit a document in evidence, so far as the parties are concerned, the matter is closed.
Therefore the contention that the document in question should not be considered as admitted since there was no occasion for the court to apply its mind to the question of admissibility also cannot be countenanced.

In the light of what is stated above I hold that the impugned order is liable to be set aside. In the result this revision petition is allowed. The impugned order is set aside.

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