1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Motilal Dangi Vs. Madhusudan Jhanwar & Anr. (S.B. Civil Writ Petition No.337/2008) Dated :18.03.2008 HON'BLE MR. JUSTICE SANGEET LODHA Mr. R.K. Thanvi, for the petitioner. Mr. M.S. Singhvi, for the respondents. BY THE COURT: 1. This writ petition is directed against order dated 19.11.07 passed by Additional District Judge (Fast Track) No.5, Udaipur in Civil Suit No.49/05 (199/05), whereby an application preferred by the defendant petitioner objecting the admissibility of the documents produced on behalf of plaintiff respondent, already taken on record as secondary evidence, has been rejected. 2. Briefly stated the facts relevant to the controversy involved in the present writ petition are that the plaintiff respondent preferred a suit for recovery of Rs.32,20,000/- against the defendant petitioner before the learned trial 2 court. During the course of the trial, plaintiff respondent preferred an application under Section 65 of the Evidence Act, 1872 for taking photo stat copies of certain documents i.e. agreement dated 24.8.02, memorandum of understanding/agreement dated 17.10.2000 and cheque dated 16.7.02 on record as secondary evidence. After hearing both the parties, the aforesaid application preferred by the plaintiff respondent was allowed by the learned trial court vide order dated 25.7.06 and the documents referred to in the said application were permitted to be taken on record as secondary evidence. A writ petition assailing the validity of the said order dated 25.7.06 has already been rejected by this Court. Thus, the order permitting the aforesaid documents to be taken on record has attained finality. 3. The petitioner defendant preferred yet another application dated 24.10.07 questioning admissibility of the documents i.e. memorandum of understanding dated 17.10.2000 (Ex.1) and agreement dated 24.8.02 (Ex.2) in evidence, on the ground that the same are not sufficiently stamped as per the provisions of the Rajasthan Stamp Law Adaption Act, 1952 (hereinafter referred as 'the Act of 3 1952'). It was contended that both the documents relates to immovable property, therefore, the same were required to be stamped @ 3 % of the value mentioned in the alleged agreement. 4. The application was contested by the plaintiff respondent inter alia on the ground that since the documents have already been taken on record as secondary evidence, the defendant petitioner is estopped from objecting the admissibility of the documents on any fresh ground. That apart, it was urged on behalf of the plaintiff respondent that the documents (Ex.1 & 2) in no manner can be termed as agreement to sell of immovable property, attracting liability of stamp duty @ 3% of the value of the property. 5. The learned trial court arrived at the finding that the agreement dated 17.10.2000 (Ex.1) incorporates the terms and conditions agreed upon between the parties regarding the investment made by the plaintiff in purchase of the immovable property and the dividend arising therefrom. Similarly, regarding the memorandum of understanding dated 24.8.02 (Ex.2), the learned trial court observed that under the said document it has been agreed upon between 4 the parties that in lieu of investment made by the plaintiff and interest thereupon, the defendant shall pay a sum of Rs.19,00000/- to the plaintiff by way of cheque. Accordingly, the learned trial court opined that both the documents, admissibility in evidence whereof has been objected by the plaintiff do not relate to transaction of immovable property as such, so as to attract the liability of stamp duty @ 3% of the value of the property in terms of Article 5 (bb) of the Schedule appended to the Act of 1952. The learned trial court reached to the conclusion that in terms of Article 5 (c) of the Schedule, the said documents are sufficiently stamped. Consequently, the application preferred by the defendant petitioner has been rejected by the order impugned. 6. I have heard learned counsel for the parties and perused the documents on record. 7. It is contended by the learned counsel for petitioner that the learned trial court has seriously erred in rejecting the application preferred by the defendant petitioner even after having arrived at the finding that the document in question narrate the condition relating to investment and dividend in respect of immovable property. The learned 5 counsel contended that the document (Ex.1) stipulates a penal clause to the effect that in the event of non performance of the contract the defendant would pay a sum of Rs.19,00,000/- to the plaintiff, thus it cannot be said that the said document does not relate to immovable property. The learned counsel urged that the order impugned is allowed to stand, it will occasion failure of justice inasmuch as if these documents are admitted in evidence the entire defence of defendant petitioner would be jeopardized. 8. Per contra, the learned counsel appearing for the plaintiff respondent contended that the petitioner is guilty of making a patent misstatement of the fact that the objection regarding the document has been taken at the first opportunity by the defendant petitioner. The learned counsel submitted that factum of an application under Section 65 of the Indian Evidence Act, being allowed by the trial court vide order dated 25.7.06 permitting the plaintiff respondent to produce the said documents as secondary evidence has been altogether suppressed by the defendant petitioner, therefore, his conduct disentitle him from invoking extra ordinary jurisdiction of this Court. The 6 learned counsel submitted that the documents (Ex.1&2) cannot be said to be documents relating to sale and purchase of immovable property, therefore, Clause ( bb) of Article 5 of second schedule appended to the Act of 1952 has no application, therefore, the learned trial court has committed no error in rejecting the application preferred by the petitioner. The learned counsel submitted that even if the order passed by the learned trial court is held to be erroneous then too such error is capable of being corrected by superior court in exercise of appellate jurisdiction, therefore, there is no reason as to why this Court should exercise its power of superintendence during the pendency of the proceedings before the trial court. In this regard, the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of 'Suryadeo Rai Vs. Ramchandra Rai' {AIR 2003 SC 3044}. 9. It is to be noticed that the documents in question have already been permitted to be taken on record by the learned trial court as secondary evidence in terms of Section 65 of the Indian Evidence Act, 1872. It is not disputed before this Court that the writ petition preferred by the defendant petitioner assailing the validity of order 7 dated 25.7.06 stands rejected by this Court and thus the aforesaid order passed by the learned trial court permitting the plaintiff respondent to produce the said documents as secondary evidence has attained finality. Moreover, a perusal of the relevant documents placed on record as Annexure-6 & 7 reveals that prima facie the finding arrived at by the learned trial court that the said documents do not relate to sale and purchase of immovable property as such, is not erroneous. That apart, the order impugned in the present writ petition passed by the learned trial court overruling the objections raised by the plaintiff petitioner regarding admissibility of the documents in evidence on the ground that the same are not sufficiently stamped is an interlocutory order and the petitioner can always question its validity in the regular first appeal before this Court in the event the final decision in the suit goes against him. In the matter of Suraydeo Rai's case (supra) the Hon'ble Supreme Court while dealing with the scope of interference by the High Court in interlocutory orders by the learned trial court keeping in view the amendment introduced in Section 115 of the Civil Procedure Code, 1908, observed as under : 8 "In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated or experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kpet away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise power of superintendence during the pendency of the proceedings. However, there may be cases where but for 9 invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded." Thus, on the facts and in the circumstances of the case, I do not find any illegality or infirmity in the order impugned passed by the learned trial court, warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 10. In the result, the writ petition fails, it is hereby dismissed. However, it is made clear that the defendant petitioner shall be at liberty to question the validity of the aforesaid order passed by the learned trial court, if finally the decision in the suit goes against him and he decides to assail the validity thereof by way of regular first appeal. No order as to costs. (SANGEET LODHA), J.