THE HONOURABLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION Nos.4979 and 5165 of 2010 COMMON ORDER: Since the subject matter in both the Civil Revision Petitions is inter-related and arise out of the orders passed consequent to each other and between the same parties, they are heard together and being disposed of by this common order. Civil Revision Petition No.4979 of 2010 is filed aggrieved by the order dated 29-09-2010 in O.S.No.1 of 2006 holding that the document dated 05-02-2002 is in admissible while the agreement dated 01-02-2002 is admissible in evidence, and Civil Revision Petition No.5165 of 2010 is filed aggrieved by the order dated 12- 08-2010 in I.A.No.662 of 2010 in O.S.No.1 of 2006, in allowing the application filed by the defendants under Order VIII Rule 1(3) read with Section 151 C.P.C. seeking to receive the documents subject to proof and relevancy and on payment of costs of Rs.300/-, both passed by the II Additional District Judge, Karimnagar at Jagtial. In both the Civil Revision Petitions the petitioner is the plaintiff and the respondents are defendants in the suit O.S.No.1 of 2006. For the sake of convenience, in this common order, the parties are referred to as they are arrayed in the suit before the Court below. The plaintiff and the second defendant herein are the sisters. The first defendant is their mother and the third defendant is the husband of the second defendant. One Neeli Rajam @ Dabba Rajam is the father of the plaintiff and the second defendant and husband of the first defendant. The Plaintiff filed suit O.S.No.1 of 2006 on the file of the II Additional District Judge, Karimnagar at Jagtial, for partition and separate possession of her alleged 1/3rd share in respect of the suit schedule property and for cancellation of the gift settlement deeds executed by D-1 in favour of D-2 and D-3 on the ground that the suit schedule property is the ancestral property. The defendants filed written statement stating that it is not an ancestral property. The trial Court commenced the trial and the evidence of plaintiff is over and on behalf of the defendants the chief-affidavit is filed. While so, the defendants 1 and 2 filed I.A.No.662 of 2010 in O.S.No.1 of 2006 under order VIII Rule 1 (3) r/w.Section 151 of Code of Civil Procedure seeking to receive certain documents filed along with the petition. The plaintiff filed counter affidavit alleging that the agreement dated 1.2.2002 is a forged and fabricated document and the alleged sale deed dated 1.2.2002 is inadmissible in evidence since the same is not duly stamped and registered. However, the Court below opined that whether the agreement dated 1.2.2002 is a forged document and whether the document is duly stamped and registered would be decided at the final disposal of the case and accordingly allowed the said application to receive the documents subject to proof and relevancy and on payment of Rs.300/- towards costs. Aggrieved by the same, the plaintiff filed C.R.P.No.5165 of 2010. The Court below after considering the evidence adduced by both the parties and the material available on record, held that the document dated 5.2.2002 is inadmissible while the agreement dated 1.2.2002 is admissible in evidence. Aggrieved by the same, the plaintiff filed C.R.P.No.4979 of 2010. Learned counsel for the plaintiff submits that the suit is of the year 2006 and evidence on behalf of the plaintiff was completed and on behalf of the evidence of defendants, chief- affidavit of defendant No.1 was filed through which they sought to mark the alleged documents, but there was no averment in the written statement filed by the defendants about the documents filed along with above I.A.No.662 of 2010, filed in the year 2010 for receipt of the documents. Therefore, there is a delay of five years. The defendants did not assign any reason for non-filing of the said documents at the time of filling the written statement and, therefore, allowing the said I.A. is erroneous and prays that the same is liable to be set aside. In support of his contention, the learned counsel for the plaintiff relied on the judgment reported in Ravi Satish v. Edala Durga Prasad an others[1], wherein it was held that “Receiving of documents after filing written statement – Leave of Court cannot be granted to file documents after filing written statement unless applicant furnishes adequate reasons justifying his failure to file them earlier with written statement.” Learned counsel also relied on a decision reported in Union of India v. Y.S. Hi-Tech Secure Print Pvt., Ltd., Hyderabad[2], wherein it was held that “Receipt of documents, at the instance of the defendant after filing written statement, being subject to leave of the Court, it may be seen whether the petitioner has given any adequate reasons, justifying his request to receive the documents after filing written statement.” Learned counsel further relied on a decision reported in Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and others[3], wherein it was held that “It is settled principle of law that evidence beyond the pleadings can neither be permitted to be adduced nor such evidence can be taken into consideration.” In view of the above, learned counsel for the plaintiff contends that in the absence of mentioning about the said two documents in the written statement filed by the defendants, the question of filing the said documents would not arise and, therefore, allowing of the application I.A.No.662 of 2010 filed by the defendants is erroneous. On the other hand, learned counsel for the defendants submits that the document dated 5-2-2002 shows that it is only an agreement, but not a relinquishment deed and hence liable to be stamped only as an agreement. So far as another document 01- 02-2002 is concerned, since the mother of the executant of the document executed gift deed and as such the said document is not liable for stamp duty and hence does not require registration. He also contends that so far as the said documents are concerned, the trial Court itself has held that the documents shall be received subject to proof and relevancy. To that effect there is no grievance for the plaintiff herein. He also submits that the contest is only in respect of document dated 01-02-2002 an agreement and the said document is found to be admissible. He also contends that the learned trial Court has assigned reasons for non-filing of documents at the time of filing of written statement by the defendants, though there was an averment about these two documents in the written statement. He also contends that document dated 01-02-2002 is only an agreement, which was resulted in the registration of the sale deed. In support of this contention, learned counsel for the defendants relied on the judgment reported in Majeti Basavamma and others v. Majeti Venkateswara Rao and others[4]. In paragraph No.11 of the said judgmentit was held that “The recognized principle in the matter of construing documents is that, where a document provides for execution of a separate document and registration thereof, at a later point of time, it cannot be treated as the one, conferring any rights or creating interests in the parties and thereby, registered.” Learned counsel for the defendants also relied on a decision reported in V. Dharma Reddy and others v. S. Hari Ram[5], wherein, in paragraphs 6 and 7 it was held as follows: “If it were to be a case where the respondent intended to rely upon the copy of the agreement of sale for the purpose of enforcing it, the objection raised on behalf of the petitioners can certainly be sustained. Section 35 of the Stamp Act prohibits admission of any “instrument” in evidence, unless, it is duly stamped. Hardly, there exists any doubt that an agreement of sale is an instrument within the meaning of sub-section (14) of Section 2 of the Stamp Act, in the normal parlance. However, it needs to be seen that for a document, to be treated as an instrument within the meaning of sub-section (14) of Section 2, a right or liability has to be created, transferred, limited, extended, extinguished, or, recorded by it. It is only then the document needs to be treated as an instrument. Where, however the document does not have any purpose to serve on account of subsequent events, it cannot be still treated as an instrument within the meaning of Section 2 (14). Agreement of sale, undoubtedly, creates rights and liabilities between the parties concerned. However, where it results in a sale-deed, the purpose underlying the agreement cannot be said to be still subsisting even thereafter. Therefore, once a sale-deed is executed, the agreement of sale preceding it cannot be treated as an instrument for the purpose of the Stamp Act.” Learned counsel further relied on a judgment reported in Yerabati Ravinder v. Vaddiraju Rambai and others[6], wherein it was held that “It is to be noted that during the trial when the 1st defendant sought to produce Ex.A-1 in evidence, describing the same as an agreement, the Court below held that it was a relinquishment deed but not an agreement and therefore, required registration under Section 17 (1) of the Registration Act, 1908.” Learned counsel for the defendants, therefore, submits that even if the said documents are not filed at the time of filing of written statement or even at the subsequent stage, the right of the parties is not taken away under the law. Having regard to the facts and circumstance of the case and having regard to the contentions raised by either party what is to be considered is as to whether the orders impugned in the Civil Revision Petitions suffer from any legal infirmity so as to interfere with the same. The petitioner herein is the plaintiff and the respondents are the defendants in the suit filed for partition in respect of suit schedule property. The defendants 1 and 2 filed I.A.No.662 of 2010 under order VIII Rule 1 (3) r/w. Section 151 of the Code of Civil Procedure before the lower court to receive certain documents. In paragraph No.3 of the affidavit filed in support of the said application, it is stated by defendant No.1, who is the mother of plaintiff and defendant No.2 herein, which reads as follows: “I submit that I am herewith filing the certified copy of decree obtained by me in respect of item No.2 of plaint schedule land passed in O.S.No.285 of 1990 dated 10- 08-1990 on the file of District Munsiff Metpalli and the certified copy of register sale deeds bearing No.1516/1994 dated 01-10-1994 executed by me in respect of part of land pertaining to item No.1 of plaint schedule “A” land and the register sale deed executed by my father in law in respect of land bearing S.No.1355 bearing No.451 of 1976 in favour of Mamidipelli Raj Bhoomaiah and the certified copy of Registered Power of Attorney executed by me, my younger brother-in-law along with others in respect of lands bearing S.No.1438 and 1439 of Korutla and agreement executed by plaintiff dated 01-02-2002 under separate list of documents. That with regard to above documents I have specifically pleaded in my written statement and put the questions with regard to above documents to PWs during their cross examination. As such the pleading is fully aware about the said documents.” In paragraph No.4 of the counter-affidavit filed by plaintiff it is stated that the agreement dated 01-02-2002 is not executed and signed by her. It is forged and fabricated documented filed for the purpose of the suit. In written statement no plea is taken regarding the sale deed document dated 01-02-2002 and the document, which is styled as sale deed is not properly written on required stamp duty and it is not registered. Hence, it is inadmissible in evidence. It is also stated that the respondents herein have not explained the reasons for not filing documents. As the delay in filing the documents was not properly explained, the same cannot be admissible in evidence. The learned trial Court after due consideration of the rival contentions has held that the delay occurred in filing the documents would indicate the latches on the part of the defendants in defending the case and on that ground it is unjust and improper to reject the plea to receive the documents. The trial Court also held that the question whether the agreement dated 01-02-2002 is forged and fabricated document can be decided at the final hearing of the case if that document is admitted into evidence. It was also held that the question whether the document dated 01-02-2002 was duly stamped and registered would be decided at the time when it is sought to be marked as exhibit. Accordingly, the trial Court held that the documents shall be received subject to proof and relevancy and on payment of costs of Rs.300/-. Subsequently, on compliance of the order passed by the trial Court by the defendants, the said documents were taken on file. The contention of the plaintiff that there is no pleading in the written statement about the said documents cannot be countenanced, since it was very much pleaded with regard to the nature of the document said to be filed in paragraph No.11 of the written statement. When the said fact was put to the learned counsel for the plaintiff, he does not disputed the same. He only contends that there is no reference with regard to the date of the document. Merely non reference of the date does not disprove the existence of the documents when the contents of the document are very much referred to in the written statement. Therefore, there is a reference bout the documents in the written statement. Secondly, regarding the contention of the learned counsel for the plaintiff the reason for non-filing of documents at the time of filing of the written statement. It is to be seen that the plaintiff has denied the existence of the agreement dated 01-02-2002 which was preceded by registered document. Therefore, it is not necessary to file the same subsequently because of the existence of earlier transaction and the circumstances narrated for non-filing of the document and inter-alia stated that document itself has been obtained only yesterday and therefore, it could be filed and sought for leave of the Court in filing the said documents. Therefore, the reasons assigned are appropriate and legal and having regard to the facts and circumstances the documents have been received. With regard to the admissibility of the documents the lower Court rightly considered the veracity of the documents and found that one of the document was found to be inadmissible and, therefore, the same is rejected, but other document, which was found to be admissible, a finding was recorded to that effect. Both the documents are invented because there is a pleading in the written statement and that the reasons assigned in the affidavit filed in support of the petition for non-filing of the document at the time of filing the written statement and the delay was also explained, which was satisfactory to the trial Court. Therefore, after satisfying with the same, the lower Court allowed the I.A. and marked the said documents. Therefore, I do not see any justification to interfere with the orders impugned in these civil revision petitions and the Court below has not committed any error in passing the impugned orders. Accordingly, both the Civil Revision Petitions are dismissed. There shall be no order as to costs. __________________________ JUSTICE G.CHANDRAIAH June 09, 2011 Pn THE HONOURABLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION Nos.4979 and 5165 of 2010 June 09, 2011 Pn [1] 2009 (3) ALT 236 [2] 2010 (6) ALD 430 [3] 2010 (1) ALD 40 (SC) [4] 2006 (4) ALT 652 [5] 2004 (5) ALD 600 [6] 2008 (1) ALD 783