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Case Number

C.R.P No. 1828/2000

Attorney(S)

Sri G.S Visweswara for Sri B.R Patil, Advocate for Petitioner
Sri G. Papi Reddy, Advocate for R-23-26
Sri L.M Devaiah Gowda, Advocate for R10
Sri S.K Srinivas, Advocate for R-27, 29, 31
Sri S. Raju, Advocate for R1 and R2

Judges

G.C Bharuka, J.

Acts

Rules 4 and 6 of Order XIII of CPC and Rule 82 of the Civil Rules
provisions of the Karnataka Stamp Act, 1957
clauses (a), (b) and (c) of Rule 4, sub-rule (1),
Rule 82(1) of the Karnataka Civil Rules
Rule 4(1) and 6 of Order XIII of CPC
clauses (a) and (b) of Section 3

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The revision petition was filed by the plaintiffs (petitioners) who are plaintiffs in O.S. No. 6674/98 before the 5th Additional City Civil Judge, Bangalore. The plaintiffs sought permanent injunction asserting lawful possession of property based on a contract for sale dated 28.2.1997. That contract was tendered in evidence as a document (marked Ex. P.2), but the defendants objected to its admissibility on the ground that it was not duly stamped. The trial Court marked the document as Ex. P.2 "subject to objections" and thereafter adjudicated admissibility, holding by order dated 28.3.2000 that the document was not duly stamped and directing the plaintiff to pay the deficit stamp duty with penalty under the Karnataka Stamp Act, 1957. The plaintiffs challenged that order by way of this revision petition.

Legal Issues Presented

Whether a document tendered in evidence and marked as "subject to objections" on the ground of deficient stamp duty is protected from subsequent challenge under Section 35 of the Karnataka Stamp Act, 1957, or whether the court may later direct payment of deficit stamp duty and penalty under Section 34 (proviso, clause (a)).
Whether, and at what stage, a trial Court is required to decide an objection to admissibility based on deficient stamp duty when such objection is raised while a document is tendered in evidence.

Arguments of the Parties

Petitioners' Arguments

The petitioners (through learned counsel Sri G.S. Vishweswara) contended that once a document is marked as an exhibit it should be deemed admitted in evidence, and consequently Section 35 of the Karnataka Stamp Act bars questioning its admissibility at any subsequent stage of the same suit or proceeding except as provided in Section 58.
In support of this position, the petitioners relied on the Supreme Court judgment in Javer Chand v. Pukhraj Surana (AIR 1961 SC 1655), asserting that the document was thereby entitled to immunity from later challenge under Section 35.

Respondents' / Objecting Party's Position (as reflected in the record)

The defendants objected to the admissibility of the contract for sale on the ground that it was not duly stamped; that objection formed the basis for challenging admissibility and for the trial Court's subsequent direction for payment of deficit stamp duty and penalty.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655	Where a document is admitted in evidence after due application of judicial mind, its admissibility cannot subsequently be questioned under the relevant provision (Section 35 of the Stamp Act) — and objections about stamping must be decided when the document is tendered.	The Court distinguished this authority: it held Javer Chand was not helpful to the petitioners because in the present case the document was not admitted after a judicial application of mind but was only tentatively marked. Thus Javer Chand did not preclude the trial Court's later direction to pay deficit duty and penalty.
Ramratan v. Bhajrang Lal, 1978 3 SCC 236	When a trial Judge's endorsement indicates a document was tentatively marked (e.g., "objected, allowed subject to objection") that indicates the admissibility question was not judicially determined and statutory protection (referred to as Section 36 in the older Act context) would not be attracted.	The Court applied this ratio to hold that mere marking of a document as an exhibit without judicial determination does not confer immunity under Section 35 of the Karnataka Stamp Act; tentative marking can be followed by a subsequent adjudication on admissibility.
Bipin Shantilal Panchal v. State of Gujarat, 2001 Crl. L.J. 1254 (Pr. 12)	The Supreme Court permitted tentative marking of documents to accelerate trials in criminal cases and deciding objections at final judgment, but carved out an exception that objections based on deficiency of stamp duty must be decided when the document is tendered.	The Court relied on this decision to reinforce the proposition that objections based on deficient stamp duty must be decided immediately when raised and cannot be deferred by mere tentative marking.
Jang Singh v. Brij Lal, AIR 1966 SC 1631	Where a litigant is harmed by a mistake of the Court, the Court should restore the litigant to the position he would have occupied but for that mistake; no act of Court should harm a litigant.	The Court cited this principle to justify allowing a trial Court to rectify its own inadvertent marking of a document (treating such marking as tentative) and to remedy any prejudice to the litigant caused by the Court's mistake.

Court's Reasoning and Analysis

The Court's analysis proceeded in a series of statutory readings, comparisons with precedent, and practical observations:

Statutory framework:
- Section 34 of the Karnataka Stamp Act disallows admission of instruments not duly stamped, subject to specified provisos (including provision for payment of the duty and penalty under clause (a) of the proviso to Section 34).
- Section 35 provides that where an instrument has been admitted in evidence its admission shall not be called in question at any stage of the same suit or proceeding on the ground of deficient stamping (subject to Section 58).
- Order XIII, Rules 4 and 6 CPC, and Rule 82(1) of the Karnataka Civil Rules of Practice state the formal requirements for endorsements on documents admitted or rejected in evidence and state that only documents admitted in evidence shall be marked as exhibits.
Problem identified: The statutes and rules do not expressly prescribe the procedure for a situation where a document is tendered and the opposing party raises an objection to admissibility (for example, on deficient stamp duty). Trial practice often involves tentatively marking documents as exhibits to avoid interrupting the flow of recording evidence.
Precedent analysis:
- The Court relied on Ramratan to conclude that an endorsement such as "objected, allowed subject to objection" shows the objection was not judicially determined and the document was only tentatively marked; statutory protection (under the older Act, referred to in Ramratan) thereby does not apply.
- Javer Chand was distinguished: that case involved documents admitted after judicial application of mind, and hence Section 35 immunity applied there. In the present case, the document was not judicially admitted.
- Bipin Shantilal Panchal was cited for the proposition that while tentative marking may be permitted in the interest of expediting trials, an exception exists for objections founded on deficient stamp duty — those must be determined immediately when raised.
Application to facts:
- Because the document in this case was only tentatively marked for convenience and its admissibility was postponed, the Court held that such marking does not conclusively invoke Section 35 protection.
- Consequently, the trial Court was within jurisdiction to examine the admissibility at a later stage and to direct payment of deficit stamp duty and penalty under clause (a) of the proviso to Section 34.
Procedural guidance and remedial principle:
- The Court emphasized that when an objection to admissibility based on deficient stamp duty is raised, the trial Court has a bound duty to decide the objection as soon as the document is tendered and before marking it as an exhibit.
- However, if a document was inadvertently marked without judicial determination of the objection, that marking is to be treated as tentative and the trial Court may later determine the objection and correct the mistake; the litigant should not be prejudiced by a Court's mistake, consistent with the principle in Jang Singh.
- The Court also noted that lapses by trial judges in failing to determine such objections are failures to discharge judicial duty and should be addressed administratively to maintain judicial discipline.

Holding and Implications

Holding: The revision petition is dismissed.

Direct consequences for the parties:

The trial Court's order (dated 28.3.2000) directing the plaintiffs to pay the deficit stamp duty with penalty under the proviso to Section 34 of the Karnataka Stamp Act is not interfered with and thus stands.

Procedural implications and guidance:

The Court clarified that objections to admissibility based on deficient stamp duty must be decided as soon as the document is tendered and before it is marked as an exhibit; tentative marking without judicial determination will not confer the immunity envisaged by Section 35.
If a document has been inadvertently marked without deciding the objection, that marking should be treated as tentative and the Court may subsequently determine the objection and remedy any prejudice caused by the mistake.
The opinion admonishes trial judges to fulfill the duty of deciding such objections promptly and suggests administrative measures for instances of repeated lapses to preserve judicial discipline.

The Court did not purport to lay down a new legal principle beyond applying and reconciling existing statutory provisions and Supreme Court authorities to the facts; the decision affirms the trial Court's exercise of jurisdiction in directing payment of deficit duty and penalty in the factual circumstances of this case.

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Riyaz Khan And Others v. Modi Mohammed Ismail And Others

Bharuka, J.:—

In this revision petition, which has been filed by the plaintiffs, the crucial question to be decided is that if a document tendered in evidence is marked as “subject to objections” on the ground of deficient stamp duty, whether the court can subsequently direct for payment of deficit stamp duty and penalty under the provisions of the Karnataka Stamp Act, 1957 (in Short the ‘Act’).

2. The petitioners are the plaintiffs in a suit in O.S No. 6674/98 on the file of the 5th Addl. City Civil Judge, Bangalore. This suit has been filed for a relief of permanent injunction against the defendants. Lawfulness of his possession over the property was sought to be justified by the plaintiffs on the basis of a contract for sale dated 28.2.1997, the plaintiff/petitioner tendered this document as an evidence but its admissibility was objected by the defendants on the ground that it was not duly stamped. The Court marked the document as Ex. P.2 subject to objections by the defendants. Subsequently, the Court took up the issue regarding admissibility of the document and passed the impugned order dated 28.3.2000 holding that the document was not duly stamped and therefore the plaintiff should pay deficit stamp duty with penalty.

3. Sri G.S Vishweswara, learned Counsel appearing for the petitioners, has assailed the validity of the impugned order by raising the plea that once the document is marked as exhibit, it should be deemed to have been admitted and as such in view of Section 35 of the Act, neither its admissibility can be questioned at a subsequent stage nor the Court can direct for paying the deficit stamp duty and penalty thereon. In support of his submission, he has relied on the judgment of the Supreme court in the case of Javer Chand v. Pukhraj Surana . AIR 1961 SC 1655..

4. Section 34 of the Act declares that instruments not duly stamped are inadmissible in evidence subject to exceptions provided therein. This section to the extent it is relevant for the present case reads as under:—

Section 34. Instruments not duly stamped inadmissible in evidence, etc. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that-

(a) any such instrument not being an instrument chargeable with a duty not exceeding fifteen naye paise only, or a mortgage of crop Article 35(a) of the Schedule chargeable under clauses (a) and (b) of Section 3 with a duty of twenty-five paise shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, even ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;

(b) to (d) *********

5. Section 35 of the Act prohibits questioning of instrument which has been admitted in evidence. It reads thus.-

Section 35. Admission of Instrument where not to be questioned.-Where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.

6. Before proceeding further, it is necessary to refer to Rule 4(1) and 6 of Order XIII of CPC which read as under:—

Order XIII.- Production, Impounding and Return of Documents

Rule 4. Endorsements on documents admitted in evidence-(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars namely:—

(a) the member and title of the suit,

(b) the name of the person producing the document,

(d) a statement of its having been so admitted,

and the endorsement shall be signed or initialled by the Judge.

Rule 6. Endorsements on documents rejected as inadmissible in evidence.- Where a document relied on as evidence by either party is considered by the Court to be inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in clauses (a), (b) and (c) of Rule 4, sub-rule (1), together with a statement of its having been rejected, and the endorsement shall be signed or initialled by the Judge.

7. Similarly, it will be necessary to refer Rule 82(1) of the Karnataka Civil Rules of Practice, 1987 which read as under.-

Rule 82. Marking of Exhibits.- (1) Only documents admitted in evidence shall be marked as exhibits.

8. None of the above statutory provisions have visualized and provided for the procedure to be followed by a Court in a situation wherein objection is raised to the admissibility of a document by the other contesting party. But, such situations frequently keep arising during the course of trials, as has been noticed by the Supreme Court in the case of Ramratan v. Bhajrang Lal . 1978 3 SCC 236 and Bipin Shantilal Panchal v. State of Gujarat . 2001 Crl. L.J 1254 Pr. 12..

9. A reading of Rules 4 and 6 of Order XIII of CPC and Rule 82 of the Civil Rules of Practice, clearly indicate that when a document is tendered in evidence, then the Court has only two options namely i) either admit the document in evidence and mark it as an exhibit or ii) to reject the document. But, keeping in view these statutory provisions the Court cannot mark the document as exhibit and at the same time keep the question of its admissibility pending further adjudication of the aspect, as has been done in the present case. But, still the trial Courts adopt such a practice keeping in view the practical difficulties to ensure uninterrupted recording of evidence. The 3-Judges Bench of the Supreme Court in Ramratan's case (supra) dealing with similar situation arising under the Stamps Act, 1899 has held that.-

“The endorsement made by the learned trial Judge that “objected, allowed subject to objection” clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.”

10. Applying the aforesaid ratio it has to be held in the present case as well that mere marking of a document as exhibit is not conclusive for the purpose of giving it any immunity from questioning under Section 35 of the Act, because, admittedly the document was not admitted after judicial application of mind and the marking was only for the sake of convenience and the issue of admissibility was postponed to facilitate uninterrupted recording of evidence.

11. The 5-Judges judgment of the Supreme Court in Javer Chand's case (supra) relied on by Sri G.S Vishweswara, learned Counsel for the petitioners, is of no help to the plaintiffs in the present case because in this case the Supreme Court had found that the document was admitted in evidence after due application of judicial mind which is not the situation in the present case. In this view of the matter, direction of the trial Court to the plaintiffs to pay deficit duty with penalty as provided under Clause (a) of the proviso to Section 34 of the Act cannot be said to be suffering from any error requiring interference by this Court.

12. Anyhow, before parting, I wish to make it clear that if there is an objection to the admissibility of a document tendered in evidence on the ground of deficit stamp duty the same has to be decided as soon as the document is tendered in evidence and till objection to its admissibility is decided it cannot be marked as exhibit. This procedural necessity has been emphasised by the Supreme Court in both the above referred judgments of the Supreme Court.

13. In Javer Chand's case, it has been held that “where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Similarly, in Ram Rattan's case (supra) it has been held that.-

“The Court, and of necessity it would be trial Court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the master as soon as the document is tendered in evidence and before it is marked as an exhibit in the case.”

14. Even recently, in the case of Bipin Shantilal Panchal v. State of Gujarat the Supreme Court with a view to accelerate the trials in criminal cases has held that “where admissibility of document is objected then the Court should tentatively mark the document as an exhibit and can determine the objections at the last stage in the final judgment.” But while so holding the Apex Court has carved an exception regarding admissibility of a document where objection is based on deficient stamp duty. It has been held that “however, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further.”

15. Keeping in view the procedural requirements provided under the CPC and the law laid down by the Supreme Court, it has to be held that whenever there is an objection to admissibility of a document on the ground that the document is not stamped, it is the bounded duty of Trial Courts to decide admissibility aspect of the document as soon as it is tendered and objected on the said ground by the other side. But, it needs to be clarified that if the document is inadvertently marked without judicially determining the objection, then marking of a document as an exhibit has to be treated merely as tentative and taking a decision on the objection at a later stage by the trial Court cannot be said to be impermissible or without jurisdiction. It is so because, non-consideration of objections by trial Courts and marking it as exhibit is a mistake of the Court and the litigating parties cannot be made to suffer for the same. It is well settled that there is no higher principle for guidance of the Court than the one that no act of Court should harm a litigant and it is the bounded duty of Courts to see that if a person is harmed by a mistake of the Court then he should be restored to the position he would have occupied but for that mistake. (See.: Jang Singh v. Brij Lal . AIR 1966 SC 1631, Pr. 6.). But, lapse on the part of trial judges to determine the objection to the admissiblity of a document of the nature involved herein has to be taken as failure on his part to discharge his judicial duty in the manner required by law and such instances as and when found has to be dealt with in the administrative side in order to maintain the discipline in the judiciary.

16. For the aforesaid reasons, the revision petition is dismissed.

Riyaz Khan And Others v. Modi Mohammed Ismail And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondents' / Objecting Party's Position (as reflected in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Riyaz Khan And Others v. Modi Mohammed Ismail And Others

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