IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD WEDNESDAY, THE NINTH (9TH) DAY OF NOVEMBER, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRP No.3596 of 2007 Between: G.Venkata Satyanarayana … Petitioner And: Pedada Prakasa Rao …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.3596 of 2007 ORDER: This revision is directed against the order dated 28.06.2007 in IA No.196 of 2007 in OS No.56 of 2006 on the file of the Additional Senior Civil Judge, Srikakulam, wherein the said application filed by the petitioner herein-defendant under Section 35 of the Indian Stamp Act for cancellation of marking of the document as Ex.A.1, was dismissed. 2. Heard both sides. Perused the record. 3. The respondent herein filed suit OS No.56 of 2006 against the petitioner herein for recovery of a sum of Rs.1,08,693/- due under the suit document. According to the plaintiff, the defendant borrowed Rs.80,000/- for his daughter’s marriage and executed a document on the same day as if it is usufructuary mortgage in respect of Ac.1.00 of land in Sy.No.47/3, 80/4 and 80/7, but however, possession was not delivered to the plaintiff. The plaintiff alleges that in spite repeated demands, the defendant did not discharge the debt and after exchange of notices, the plaintiff filed suit. The defendant filed written statement, denying borrowal and also denying execution of the suit document and contending that it is a rank forgery. After framing of necessary issues, the trial has commenced. It is stated that the Advocate Commissioner in the course of recording of evidence of PW.1-plaintiff has marked the suit document as Ex.A.1. Thereafter, the defendant filed the present application seeking cancellation of the said marking on the ground that the document is inadmissible in evidence for want of sufficient stamp duty and also registration. The respondent-plaintiff opposed the same contending that inspite of ample opportunity given to the defendant, no objection was raised before the Commissioner against marking of the said document and since the document was already marked as exhibit, the same cannot now be cancelled. The trial Court by impugned order dismissed the application. Hence, the present revision by the petitioner- defendant. 4. Learned counsel for the petitioner relied upon the decision in ‘Vemi Reddy Kota Reddy v. Vemi Reddy Prabhakar Reddy[1]’ wherein, it was held as follows: “As per Order-13 Rule-3 of the Code of Civil Procedure, the Court may at any stage of the suit, reject any document, which it considers irrelevant or otherwise inadmissible, recording the grounds for such rejection. No doubt, under Order-13 Rule-4 of the Code of Civil Procedure, when once the document is admitted in evidence, there is a bar under Section-36 of the Indian Stamp Act as regards the objection of admissibility of the document. In the instant case, no doubt, there is an Exhibits Seal, filling the blanks and initialed by the District Judge on 15-7-2003. But, the question that arises as to whether Ex.A1 is formally proved, which was tendered in evidence along with the affidavit of the plaintiff. There is no record to show that Ex.A1 was marked in the presence of the defendant as held by the Apex Court in Javer Chand Vs. Pukhraj Suran (6 supra). The Court has to judicially determine the matter as soon as the document is tendered in evidence before it is marked as an exhibit in the case. In the instant case, there is no judicial determination with regard to the admissibility of document, Ex.A1, which was tendered by the plaintiff along with his affidavit in the form of chief-examination. Therefore, it cannot be said that the document, Ex.A1, is admitted in evidence, merely because there is an affixture of the Exhibits Seal. I am, therefore, of the opinion that the said Exhibits Seal was mechanically stamped and the learned District Judge has initialed thereon even though, there was no judicial determination of the admissibility of the said document as required by law.” 5. In the above case also, the plaintiff’s affidavit in chief was filed along with the list of documents, which were marked as Exs.A.1 to A.22 and the disputed agreement of sale was marked as Ex.A.1 and the endorsement of payment thereon was marked as Ex.A.2 and the Court has put the seal with initials of the Presiding Officer on the exhibits. The defendant therein filed an application to declare that the documents marked as Exs.A.1 and A.2 are not admissible in evidence on the ground that the said document requires stamp duty and penalty. The trial Court allowed the application of the defendant and directed the plaintiff to pay the stamp duty and penalty on Ex.A.1 before proceeding further with the trial. Aggrieved by the said order, the plaintiff filed a revision. The revision petitioner-plaintiff contended that when once the document is received in evidence in the chief examination under Order 18 Rule 4 CPC, admissibility of the document cannot be questioned. The respondent therein on the other hand contended that under Order 13 Rule 3 CPC, the Court at any stage of the suit may reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. The petitioner therein-plaintiff contended that when once the endorsement is made on the document as required under Order 13 Rule 4 CPC, the same cannot be questioned at a later stage in view of Section 36 of the Stamp Act. This Court following the decision of the apex Court in ‘Javer Chand & others v. Pukhraj Surana[2]’ held that ‘admitted in evidence, as appearing in Section 36 of the Stamp Act, means admitted after judicial consideration of the circumstances relating to its admissibility.’ It was further held that ‘there shall be a judicial determination of the question whether it can be admitted in evidence or not for want of the stamp’. It was held in the above case that ‘on the day when the document was shown in the said case to the witness and marked, the District Munsif has not applied his mind to the admissibility of the document and consequently, there is no judicial determination in regard to the objection raised by the defendant. It was further held that ‘merely because a document was marked and shown to the witness, it would not mean that the objection raised by the defendant has been rejected’. 6. In the present case, the document was marked as Ex.A.1 by the Advocate Commissioner while recording chief examination of PW.1 and that too in the absence of the defendant. According to the petitioner/defendant neither himself nor his counsel were present at the time of recording of evidence and at that time, the petitioner was suffering from throat cancer and underwent surgery and was not in a position to move out and in fact, he left the house without informing the family members and subsequently he was traced and brought back by his brother and therefore, he could not contact his counsel also. It is therefore not a case where the defendant was present at the time of recording of evidence of PW.1 and still did not raise any objection against marking of the said document. There was therefore no real and substantial opportunity for the defendant to raise objection against marking of the document as Ex.A.1 and consequently, there was no judicial determination as to the admissibility or otherwise of the said document and it was mechanically given an exhibit number in a routine way. The above decision therefore squarely applies to the facts of the present case as well. 7. In ‘Malay Kumar Ganguly v. Dr. Sukumar Mukherjee[3]’ the apex Court held as follows: “It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross- examination in a court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken.” 8. In ‘T.Basavaraju v. T.Nagaratnam[4]’, this Court held as follows: “…In a matter like this, unless and until there is a judicial determination, it cannot be said that it has been admitted in evidence, though it is marked. Mere marking of the document itself is not sufficient and there should be judicial determination as to the nature of the document and its admissibility. Further, the words 'admitted in evidence' appearing in Section 36 of the Stamp Act means 'admitted after judicial consideration of the circumstances relating to the admissibility'. There shall be a judicial determination of the question whether the document can be admitted in evidence or not for want of stamp duty etc. In this case, on the date when the document was marked, the learned Judge has not applied his mind as to the admissibility of the document and consequently, there was no judicial determination in regard to the objection raised by defendants 4 and 5. Merely because the document was marked, it would not mean that the objection raised by the other side has been rejected”. 9. Learned counsel for the respondent-plaintiff on the other hand would rely upon the decision in ‘Isra Fatima v. Bismillah Begum[5]’ wherein it was held that ‘once a document is admitted in evidence giving an exhibit mark to it in the absence of any objection, it cannot be challenged subsequently requiring to de- exhibit the same on the ground that it is insufficiently stamped and also requires registration’. 10. In the above case, the document Ex.B.2 was marked from the chief examination of DW.1 on 02.08.2001 and thereafter, she was cross-examined on 13.08.2001 in part and subsequently, on 03.09.2001, plaintiff filed application under Section 151 CPC to de-exhibit Ex.B.2. In the above case, the document Ex.B.2 was marked through DW.1 in the presence of plaintiff through his counsel, but no objection was raised on the ground of non- registration and stamp duty and subsequently after cross- examining DW.1 in part, an application was filed to de-exhibit. It was a case where the plaintiff has not availed the opportunity to raise objection at the appropriate time when the document was marked, though he was present and also there was judicial determination as to the admissibility or otherwise of the document and it was given exhibit number by the Court. The decision cited is therefore, not applicable to the facts of the present case, where situation is altogether different. 11. Learned counsel for the respondent further relies on another decision in ‘Palevala Suryanarayan v. Mosa Kamaraju[6]’ wherein also there was never any objection raised by the defendant for marking of the suit pronote Ex.A.1 on the ground that it was insufficiently stamped. The suit was however dismissed holding that the suit pronote was insufficiently stamped and therefore, the suit was not maintainable. Aggrieved by the same, the plaintiff filed the revision and the same was allowed on the ground that the defendant never raised any objection over the admissibility of the document Ex.A.1 pronote, which is insufficiently stamped and allowed the revision and ultimately decreed the suit. The above decision also referred to the decision in ‘Javer Chand’s case (2nd supra), which is referred to in ‘Vemi Reddy Kota Reddy’s case (first supra) wherein the apex Court held that ‘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’. In the above case it was further held that ‘once a document has been marked as an exhibit in the case and the 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 the witnesses, Section 36 of the Stamp Act comes into operation’. The situation in the present case is however different as the document was marked in the absence of the petitioner/defendant and there has been no judicial determination as to its admissibility. In the absence of any such judicial determination, mere marking of the document by giving it exhibit number does not mean that opposite party is precluded from raising objection regarding the admissibility of the document and seeking judicial determination of the same. Order 13 Rule 3 CPC enables the Court at any stage of the suit to reject any document which it considers irrelevant or inadmissible. 12. In ‘Shyamal Kumar Roy v. Sushik Kumar Agarwal’, the apex Court held as follows: “….When there had been no determination as regards sufficiency of the stamp duty paid on an instrument and in the event the document is taken in evidence with an endorsement, that "objected, allowed subject to objection", this Court in Ram Rattan (supra) held that the objection was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted. Ram Rattan (supra) also, therefore, is an authority for the proposition that the party objecting to the admissibility of the document must raise an objection so as to enable the trial judge to determine the issue upon application of his judicial mind at the appropriate stage.” 13. In the present case, the petitioner/defendant had no occasion to raise objection as he was admittedly not present when the document was marked by the Advocate Commissioner while recording chief examination of PW.1. Admittedly, there had been no judicial determination by the Court as to the admissibility or otherwise of the said document. 14. In view of the principles laid in the above decisions and having regard to the fact that since the suit document is marked as Ex.A.1 by the Advocate Commissioner while recording chief examination of PW.1 in the absence of the defendant and therefore, there was no occasion or opportunity to raise objection regarding its admissibility and consequently, there was no judicial determination on the question of admissibility or otherwise of the document by the Court by due application of judicial mind, it is held that mere marking by way of giving exhibit number to the said document does not preclude the petitioner/defendant from raising the question of admissibility of the document and when once the said objection is raised, the Court has to consider the same on its merits and judicially determine whether the document is admissible or not. 15. In the circumstances, the impugned order, dismissing the application on the ground that the document is already marked as exhibit and therefore, the defendant cannot raise objection is unsustainable and the same is accordingly set aside. Consequently the trial Court is directed to consider the objection raised by the petitioner/defendant in IA No.196 of 2007 afresh and pass appropriate orders regarding admissibility or otherwise of the suit document. 16. In the result, the civil revision petition is allowed accordingly. No order as to costs. G.V.SEETHAPATHY, J Date: 09.11.2011 bss [1] 2004(3) ALD 187 [2] AIR 1961 SC 1655 [3] (2009) 9 SCC 221 [4] 2006(1) ALT 135 [5] 2006(4) ALT 216 [6] 1998(5) ALD 166