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SCA/12664/2009 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12664 of 2009
With
SPECIAL
CIVIL APPLICATION No. 12666 of 2009
=========================================================
ALLARAKHA
HAJI SHAIKH - Petitioner(s)
Versus
MUKTABEN
LALJIBHAI TAKODARA & 88 - Respondent(s)
=========================================================
Appearance :
MR
SP MAJMUDAR for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1 - 3,5 -
7,10 - 16,18 - 19,19.2.1 - 20,23 - 26,29 - 31,35 - 37,39 - 42,44 -
48,51 - 55,57 - 58,61 - 76,78 - 80,83 - 86,88 - 89.
NOTICE
UNSERVED for Respondent(s) : 4,8 - 9,17 - 18,20.2.2 - 22,27 - 28,32 -
34, 38, 43,49 - 50, 56,59 - 60, 77, 82, 87,
NOTICE SERVED BY DS
for Respondent(s) : 7, 10,23 - 26, 30,35 - 37,39 - 40, 42, 46,51 -
55, 61, 65, 67, 70,80 - 81, 83,88 -
89.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 23/04/2010
ORAL
ORDER
The
petitioners-original defendants are before this Court being aggrieved
by an order passed below Exh.125 in Regular Civil Suit No.476 of 2005
and order passed below Exh.90 in Regular Civil Suit No.525 of 2005,
whereby the learned Judge allowed the application and ordered that
Documents referred in this application be given tentative
exhibit with an objection of other side, subject to prove the same in
accordance with settled provisions of Indian Evidence Act….
2. The
orders dated 29/10/2009 passed by the learned 7th
Additional Senior Civil Judge, Jamnagar in the above referred two
Regular Civil Suits, are challenged before this Court and it is
emphatically submitted that though the learned Judge has recorded in
paragraph No.5 and considered the judgment of the Hon’ble the Apex
Court in the matter of Bipin Shantilal Panchal Vs. State of
Gujarat reported in GLR 2001 (3) at Page No.2024 and more
particularly the observations made by the Hon’ble the Apex Court in
paragraph No.13 and 15 which are quoted in the said paragraph,
relevant part of which reads as under:
….. When so recast, the
practice which can be a better substitute is this: Whenever an
objection is raised during evidence taking stage regarding the
admissibility of any material or item of oral evidence the trial
court can make a note of such objection and mark the objected
document tentatively as an exhibit in the case (or record the
objected part of the oral evidence) subject to such objections to be
decided at the last stage in the final judgment. If the Court finds
at the final stage that the objection so raised is sustainable the
Judge or Magistrate can keep such evidence excluded from
consideration. In the Court’s view there is no illegality in
adopting such a course. (However the Court makes 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.)…. (emphasis supplied).
3. The
learned Judge has ordered to give ‘tentative exhibit’ to all the
documents mentioned in application Exh.125 and Exh.90. The learned
Advocate for the petitioner submitted that the documents pertain to
four different transactions and for every transaction three documents
are sought to be produced by Exh.125. He submitted that the document
out of the three documents of each of those four transactions is a
copy of the ‘registered sale-agreement’; whereas the second document
is the ‘receipt’ and the third document is the ‘allotment letter’.
The learned Advocate submitted that so far as ‘receipt’ and
‘allotment letter’ are concerned they stand on a different footing,
but so far as ‘registered sale-agreement’ is concerned, it is the
document to which the aforesaid observations of the Hon’ble the Apex
Court squarely apply. The defendant raised an objection qua these
documents that there is deficient stamp duty, and submitted that as
per law laid down by the Hon’ble the Apex Court, the Court has to
decide the said objection, before proceeding further. The learned
Advocate submitted that to that extent the order is bad and is
required to be quashed and set aside.
4. The
petition was filed on 11/11/2009. Notice was issued on 02/12/2009.
The Court at the time of issuing notice has recorded in paragraph
No.3 as under.
3. The
learned Counsel for the petitioner has submitted that the impugned
order, whereby the tentative exhibit numbers are directed to be given
to the documents in question, without deciding the objections raised
by the petitioner regarding deficiency of stamp duty, is against the
settled principles of law, as enunciated by the Supreme Court in
Bipin
Shantilal Panchal Vs. State of Gujarat & Anr.
2001(3)GLR 2024. The learned Counsel for the petitioner has drawn
the attention of this Court to the observations of the Supreme Court
in Paragraph-14 of the above-mentioned judgment, wherein it has been
held that if the objection relates to stamp duty of a document, the
Court has to decide such objection first, before proceeding further.
It is further submitted that this judgment of the Supreme Court has
not been appreciated in its proper perspective, by the Court below,
while passing the impugned order.
4.1 The
Court had granted interim-relief whereby the proceeding of Regular
Civil Suit No.476 of 2005 came to be stayed and they continued to be
stayed till date. Thereafter, as the notices were not served to some
of the respondents on 03/02/2010 the Court ordered for issuance of
fresh notice. Again on 03/03/2010 the Court granted permission to
file Civil Application
for praying for permission to serve the unserved respondent by
‘substituted service’.
5. Today
also the cause-list shows that Notice is served to respondents
No.1-3,5-6,7,11-16,18,19-20/B;
whereas notice has remained unserved to respondents
No.4,8-9,17,18/A,20/B-22,27-28; whereas the notice is served by
Direct Service to respondents No.7,10,23-26,30,35-37. It is also
recorded in the remarks column that respondent No.18/A has sold house
as per the affidavit of Direct Service filed. Respondent No.20/B, 21,
34, 32, 33, 22, 27, 17, 56, 38, 43, 9, 87, 4, 77, 49, 50, 82 have
open plots and no houses are constructed yet as per affidavit of
Direct Service. This is with regard to Special Civil Application
No.12664 of 2009.
5.1 So
far as Special Civil Application No.12666 of 2009 is concerned,
remarks column shows that notice unserved to respondents No.1 to 3,
5, 9 to 11, who were not found as per Bailiff’s Report. It is also
mentioned in the cause-list that notice is unserved to respondents
No.1 to 3, 5, 9 to 11. It is also mentioned that notices are served
by affixing to respondents No.4, 7 and 8 and notice is served by
Registered Post A.D. to respondent No.6.
6. Taking
into consideration the aforesaid details
about the service of notice, issued by this Court and taking into
consideration a fact that matter is covered by a decision of the
Hon’ble the Apex Court and taking into consideration the fact that
decision was not only referred to by the learned Judge but the
learned Judge has taken note of the said, this Court is of the
opinion that an inadvertent mistake has crept in the operative part
of the order and therefore the order passed below Exh.125 in Regular
Civil Suit No.476 of 2005 challenged in Special Civil Application
No.12664 of 2009, as well as, order passed below Exh.90 in Regular
Civil Suit No.525 of 2005 challenged in Special Civil Application
No.12666 of 2009 are required to be quashed to that extent. It is
accordingly quashed. The documents which bear deficit stamp duty
viz., Mark 3/114, 3/44, 3/56 and 3/162 in Regular Civil Suit No.476
of 2005 and Mark 3/17 in Regular Civil Suit No.525 of 2005 are the
copies of the registered sale-agreements cannot be given tentative
exhibit numbers. As per the law laid down by the Hon’ble the Apex
Court in paragraph Nos.13 and 15 of the judgment in the matter of
Bipin Shantilal
Panchal (Supra),
the learned Judge has to decide the objection raised by defendant qua
these documents before proceeding further. So far as other documents
are concerned, the order of giving tentative exhibit to those
documents remain unaltered. The learned Judge is directed to follow
the procedure prescribed by the Hon’ble the Apex court with regard to
such documents.
7. In
the result, both the petitions are disposed of with the aforesaid
direction. Order dated 29/10/2009 passed in Regular Civil Suit NO.476
of 2005 and Regular Civil Suit No.525 of 2005 stands altered to that
extent. In the event the respondents herein original plaintiffs
have any objection against this order, they may approach this Court
on or before 30/06/2010.
(RAVI
R TRIPATHI, J.)
sompura
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