1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:28.06.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P(PD)(MD)No.743 of 2011 & M.P(MD)No.1 of 2011 Vedaraj ..Petitioner/Petitioner/ Defendant -Vs- Iyyadurai ..Respondent/Respondent/ Plaintiff PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the Fair and Decreetal order dated 17.02.2011 passed in I.A.No.88 of 2011 in O.S.No.705 of 2009 on the file of the Second Additional District Munsif Court,Tirunelveli. For Petitioner :Mr.Meenakshi Sundaram for Mr.V.Vallinayagam. For Respondent :Mr.S.Mani *** ORDER The Defendant is the petitioner challenging the order of dismissal of his petition filed to receive the document dated 15.12.1994, as evidence on the side of the defendant. 2.Heard Mr.V.Meenakshisundaram, learned Counsel for the petitioner and Mr.S.Mani, learned Counsel for the Respondent. 3.The suit has been filed by the respondent/plaintiff for permanent injunction and another suit in O.S.No.713 of 2009 has been filed by the petitioner herein for permanent injunction in respect of the same suit property and both the suits were clubbed together for joint trial. 4.The case of the petitioner is that the respondent/ plaintiff agreed to sell the First Schedule property to one Abraham for the total sale consideration Rs.60,000/ pursuant to the sale agreement. The respondent received a sum of Rs.60,000/- from Abraham and executed a document/receipt acknowledging receipt of Rs.60,000/- and handing over the possession of the property. The said document is sought to be marked and the same was opposed by the respondent/plaintiff https://hcservices.ecourts.gov.in/hcservices/ 2 contending that the said document is an unregistered document and the same is hit by Stamp Act. The trial Court sustaining the objections raised by the respondent/plaintiff and dismissed the said application. Therefore, the defendant is before this Court challenging the order of dismissal. 5.Mr.V.Meenakshi Sundaram, learned Counsel for the petitioner submits that the said document is not a sale deed requiring compulsory registration and it is only as a receipt for having received Rs.60,000/- by the respondent/plaintiff and handing over the possession of the property. The said document is sought to be used collateral purposes to prove that the possession is with the petitioner. He relied upon the judgment of the Honourable Supreme Court in K.B.Saha & Sons Pvt Ltd., -Vs- Development Consultant Ltd reported in (2009) 2 MLJ 526(SC) and another judgment in Liladhar -Vs-Siaram and another reported in AIR 1976 Allahabad 213. The Honourable Supreme Court in K.B.Saha & Sons Pvt Ltd., -Vs- Development Consultant Ltd reported in (2009) 2 MLJ 526(SC) held that unregistered document can be used as evidence as collateral purpose as provided in the proviso under Section 49 of the Registration Act. 6.On the other hand Mr.S.Mani, learned Counsel for the respondent submitted that the said document cannot be received in evidence as it is a sale deed which requires compulsory registration and it is hit by Stamp Act. If the document is compulsorily registrable the same cannot be received without registration and even for collateral purpose the same cannot be looked into. He relied upon the judgment of this Court in S.Kaladevi -Vs- V.R.Somasundaram and two others reported in 2009 (1) TLNJ 540(Civil) to submit that a collateral transaction is an act that does not create or extinguish any right or title or interest of immovable property. Another judgment quoted by him is in D.Sivagnanam -Vs- Thirugnanaprakasham and two others reported in 2010 (3) CTC 873 to submit that unstamped and unregistered documents cannot be admitted in evidence and cannot be looked into even for collateral purpose. In K.Veerabadran and others -Vs- K.Venugopal and four others reported in 2010 (3) CTC 761 wherein it is held that the trial Court should decide such admissibility at the stage of marking itself if objections relates to stamp duty payable on such document. Therefore, he submits that the said document cannot be received in evidence and cannot be looked into even for collateral purpose. 7.The respondent/plaintiff narrated about the circumstances under which the document came into existence in paragraphs 6,7 and 8 of written statement. It is stated that pursuant to the sale agreement between the respondent/plaintiff and the Abraham executed the receipt acknowledging the receipt of Rs.60,000/- and also handing over the possession. A perusal of the said document would show that the respondent/plaintiff received Rs.60,000/- and handed over the possession of the property. The petitioner seeks to mark the document only for the purpose of collateral purpose to show that he is in possession of the property. If any finding is given with regard to document, it will affect both the parties in the trial therefore, this Court is not inclined to give findings with regard to the document. https://hcservices.ecourts.gov.in/hcservices/ 3 It is open to the trial Court to give its finding at the time of disposal. Therefore, the document is required to be received in evidence subject to objections from the respondent. Without receiving the document, the nature of the document cannot be decided. It is always open to the respondent to contest the said document or discredit the said document at the time of cross-examination and it can also attack the said document at the time of final disposal. As per the judgment of the Honourable Supreme Court in Bipin Shantilal Panchal -Vs-State of Gujarat and Another reported in AIR 2001 SC 1158 the document should be received as evidence subject to the objections and the same is required to be considered at the time of disposal of the case. As per the above said judgment if the document is not received and is rejected at the threshold itself, the appellate forum/Court may not have the benefit of examining the said document and therefore, interest of justice requires receiving the document subject to objections. Even the admissibility and relevancy could be looked into and findings could be given by the trial Court at the time of disposal of the case. 8.No doubt, the judgment relied upon by the learned counsel for the respondent speaks about what is nature of collateral purpose and non receiving of unregistered document in evidence. However, the document has to be in toto considered subject to objections at the time of final disposal and it would not prejudice both parties. As stated above, the respondent is at liberty to discredit the said document during the trial Court. The trial Court is directed to receive the said document and mark it subject to objections and to give finding at the time of final disposal. This Court reiterates that the respondent/plaintiff has got every right to discredit the said document during the trial. In view of that, the order of trial Court is set aside and the Civil Revision Petition is allowed. Consequently connected Miscellaneous petition is closed. No costs. Sd/- Assistant Registrar(P&A) /True Copy/ Sub-Assistant Registrar To The Second Additional District Munsif Court, Tirunelveli +One cc to Mr.M.Vallinayagam, Advocate, SR.No.20712 +One CC to Mr.S.Mani, Advocate, SR.No.20504 gsr rl/4c – 7.7.2011 C.R.P(PD)(MD)No.743 of 2011 28-06-2011 https://hcservices.ecourts.gov.in/hcservices/