SHANKRAMMA W/O MANJAPPA KARIDYAMANNANAVAR v. SAVITA W/O RUDRAGOUDA PUTTANAGOUDRU

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Additional JMFC, Ranebennur vide Annexure-E and pass such other order as this Court deems fit in the circumstances of the case.

3. The petitioner while seeking the relief has contended that the petitioner has filed a suit in O.S.No.200/2017 against the defendants to declare the cancellation of sale deed dated 04.08.2017 registered in the name of defendant Nos.1 and 2 and give the direction to defendant Nos.1 and 2 to sale the property to the plaintiffs and register the sale deed and possession of the property by right of pre-emption consequent upon the execution of a consent deed which is annexed as Annexure-D. To the plaint vide Annexure-A, the defendant Nos.1 and 2 filed written statement denying the allegation made in the plaint and sought to dismiss the suit and thereafter the Petitioners herein requested the Trial Court seeking permission to mark the document vide Annexure- D as one of the exhibit. The respondents have not filed any objections to the said document and the learned

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Judge without going all these aspects has ordered to reject the permission to mark the document which is totally illegal and one without authority of law. The very document is base for claiming the relief before the Trial Court. If the said document is not considered, the plaintiffs will be out of the Court. Hence, the order impugned is liable to be quashed. The counsel in support of his argument, relied upon the order of this Court dated 06.04.12022 in W.P.No.100576/2022 wherein a question was raised that whether the document though compulsorily not having been registered can be objected to at the time of marking during the course of evidence and this Court comes to the conclusion relying upon the judgment of the Hon'ble Apex Court in the case of Yellapur Uma Masheswari and another Vs. Buddha Jagadheeswararao and others¹extracted the para 18 of the judgment and also relied upon the judgment in the case of Shyam Narayan Prasad Vs. Krishna Prasad and

2015 AIR SCW 6184

1

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others²and extracted paragraph 22 of the judgment and so also relied upon the judgment in Mahadeva Vs. The Commissioner, Mysore City Corporation and others³and extracted paragraphs 9 and 10. This Court having considered Section 34 of Karnataka Stamp Act, 1958 which does not envisage any reference being made before the document can be marked and in paragraph 12 comes to the conclusion that if an unregistered document is brought up for marking during the course of evidence, in the event of the said document not being stamped adequately, or the stamping being improper, the said Court can impound the document and levy penalty. It is only after the penalty is paid upon the impoundment, that the Apex Court as also this Court have held that, the document can be marked in evidence. However, the admissibility thereof is to be decided subsequently. The counsel referring this judgment would contend that the reasons assigned by the trial court in coming to the

2 AIR 2018 SC 3152

2003(1) Kar.L.J.518

3

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conclusion that there is no recital regarding consideration. Apparently, the vague hidden object therein appears to be unlawful and ingredients of the valid contract is not at all forthcoming and the agreement must be certain, but certainty cannot be made out from the aforesaid document and the same is vague and indefinite one. The Trial Court also discussed regarding Section 2(h) of the Indian Contract Act which defines as "an agreement enforceable by law" and Section 10 of the Indian Contract Act, all agreements or contracts are enforceable, only if they are supported by lawful consideration with lawful object and they only the document can be entertained and the said observation of the Trial Court is erroneous.

4. Per contra, learned counsel for respondent No.2 would vehemently contend that Order 13 Rule 3 of CPC is very clear that the Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection and the Trial Court while rejecting the

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application, has assigned the reasons that document is not lawful document and the document is also inadmissible, the same cannot be entertained and rightly comes to the conclusion that it cannot be considered as a contract and it cannot be termed as consent deed and no evidentiary value can be attached. When such reasons are assigned, question of quashing the impugned order does not arise.

5. Having heard the petitioner's counsel and also the counsel appearing for respondent No.2, this Court has to take note of the relief sought before the Trial Court in the suit which is filed for the relief of declaration wherein sale deed is questioned and claiming preferential right based on the document vide Annexure-D as there was a consent deed between the plaintiff and defendant No.1. It is not in dispute that the defendant No.1 has not filed any objections before the Trial Court with regard to document vide Annexure-D and the document is also recited as consent letter. When the plaintiff intends to rely upon that document and the same is tendered before the court and if

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the document is unstamped, the Trial Court has got the power to impound the document regarding the very contents of the document and the interpretation of document is concerned whether it is a contract or not, the same can be considered at later stage while considering the matter on merits, not at the stage of entertaining the document before the Court. No doubt, Order 13 Rule 3 of CPC is very clear with regard to whether the document is irrelevant or inadmissible, the Court has to record the reasons for such rejection.

6. In the case on hand, it has been noted that when the document is termed as consent deed even if the document is inadmissible and it is not the case of the Trial Court that the document ought to have been registered but comes to the conclusion that the document does not disclose any recital of any contract between the parties. I have already pointed out that the document evidencing the fact of contract or not while entertaining the document itself, the Court cannot come to the conclusion. No doubt,

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if the same is inadmissible, collect the duty and penalty impounding the documents and then the document would have been entertained and the same has not been done. This Court in W.P.No.100576/2022 referred supra having taken note of the judgment of the Hon'ble Apex Court and also the judgment of this Court, held that in the event of the said document not being stamped adequately, or the stamping being improper, the said Court can impound the document and levy penalty. It is only after the penalty is paid upon the impoundment, that the Apex Court as also this Court have held that, the document can be marked in evidence. However, the admissibility thereof is to be decided subsequently and the same has not been done in the case on hand and even not considered the document before the Court and there is a force n the contention of the counsel for petitioner that if the document is not entertained, the plaintiffs will be out of the Court and the reasons assigned by the Trial Court that the document is not a contract and cannot be decided even before admitting the document whether that document confers

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any right or not, the same has to be considered at the time of considering the matter on merits and the very rejection of the marking of document is erroneous. Hence, the impugned order is liable to be quashed.

7. In view of the discussions made above, I pass the following:

ORDER

(i) Writ Petition is allowed.

(ii) The impugned order dated 21.03.2019 in O.S.No.200/2017 passed by the Prl. Civil Judge and I Additional JMFC, Ranebennur vide Annexure-E is quashed.

(iii) The Trial Court is directed to consider the document and if the document is found to be unstamped or any improper stamping is made, impound the document and levy penalty after

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(iv) The interpretation of the document whether it is a contract or not, the same can be considered at the time of considering the matter on merits. The Trial Court shall not influence with the observations made by this Court while considering this writ petition on merits.

Sd/-

(H.P.SANDESH)

JUDGE

NAA

CT-MCK List No.: 2 Sl No.: 8