ORDER
Aswathanarayana Rao, J
1. This is a defendants’ Revision Petition against an order dated 18.2.1995 passed on I.A.XII in O.S.No. 10234/83 on the file of the Court of the X Additional City Civil Judge, Mayo Hall, Bangalore.
2. After hearing the learned Counsel for the parties on admission, since I find that the matter can be finally disposed off at this stage itself, it is taken up for final orders.
3. The 1st respondent/plaintiff filed the suit in O.S.No. 10234/83 against the petitioners/defendants 1 and 2 and respondents 3 to 5 who were defendants 3 to 5 respectively for the relief of specific performance of an agreement to sell. The defendants resisted the suit. During the course of the recording of the deposition of the plaintiff, the plaintiff tendered a letter dated 4.11.1980 to be marked in evidence. It was not a stamped document. It was marked as Ex.P1. The case was adjourned for cross-examination. At that juncture, the defendants 1 and 2 filed the application I.A.XII under Section 34 of the Karnataka Stamp Act, 1957 (here in afterwards referred to as ‘the Act’) read with Section 151 of the Code of Civil Procedure praying:-
i) to determine the duty and penalty payable in respect of Ex.P1;
ii) to order that unless the duty and penalty is paid on Ex.P1, no further evidence can be recorded;
and
iii) to order that Ex.P1 cannot be acted upon for any purpose.
The plaintiff opposed the application. After hearing the learned Counsel for both the parties, the learned Trial Judge, by the order dated 18.2.1995 rejected the application. Beng aggrieved by the said order, the defendants 1 and 2 have filed this Revision Petition.
4. I have heard Sri Kumar, the learned Counsel for the petitioner and Sri Ashok B. Patil, the learned Counsel for the 1st respondent and have perused the records. Notice to other respondents have been dispensed with (vide order-sheet dated 6.6.1995).
5. The learned Counsel for the petitioners has made available a copy of the application I.A.XII and the affidavit filed with it and the , objection filed to that application.
In the affidavit of the 1st defendant filed with I.A.XII, she has stated that Ex.P1 could not have been marked as an exhibit since it is not stamped. She has stated that when the evidence of P.W.1 was recorded, her Senior Counsel could not be present and a Junior Colleague of his, a new entrant to the Bar, was present, he did not raise any objection and taking advantage of that situation, the plaintiff has got the document marked as an exhibit. The plaintiff has objected to the application contending that the defendants, having failed to bring the Senior Counsel on the date of evidence, now cannot put an uncharitable blame on the plaintiff. After hearing the learned Counsel for the parties, the learned Trial Judge took the view that it was for the defendants to have been vigilant and to have objected to the marking of the document and when once the document is admitted in evidence, its admissibility cannot be questioned at a subsequent stage. Therefore he dismissed the application.
6. The learned Counsel for the 1st respondent, supporting the impugned order, urged two contentions. Firstly he contended that the Revision Petition is not maintainable under law. Secondly he supported the view of the Trial Court that the question of admissibility of the document Ex.P1 cannot be reopened now.
7. With regard to the first contention, the learned Counsel for the 1st respondent relied upon two Decisions. In N.S. LAKSHMAIAHSETTY vs. R. GOVINDAPPA AND ANOTHER, 1994(2) Mys. L.J. 145, it is held as follows:-
“Where a document has in fact and in law had been admitted in evidence, Section 35 of Mysore Stamp Act comes into operation and it is no longer open to the original Court to act under the proviso to Section 34 and levy duty and penalty.
The Court which could act suo motu under Section 58 is not the Court to which appeals or references under the Stamp Act lie, but the Court to which an appeal or reference arising out of the main proceeding lies under the Civil Procedure Code and the Civil Courts Act.
Hence, where a document had been admitted by the Munsiff Court, the High Court cannot act under Section 58 Stamp Act.”
In JAVER CHAND AND ORS. vs. PUKHRAJ SURANA, , it is held as follows:-
“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, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a court of superior jurisdiction.”
8. As against these Decisions, the learned Counsel for the petitioners contending that the Revision Petition is maintainable, relied upon two Decisions. In a later Decision of this Court reported in 1992(1) KAR.L.J. 191, Bhima Rao Dattaka v. Channappa Basavantappa Kalasur and Anr., it has been held that an order under Section 34 of the Act is revisable. The Decision in , has no application to the facts of the case on hand since its applicability depends upon the question whether Ex.P1 can be said to have been admitted or not. I shall consider that aspect while considering the second point. In view of the later Decision of this Court referred to above, I hold that the Revision Petition is maintainable.
9. With regard to the 2nd contention the learned Counsel for the 1st respondent relied on the Decision in which is already referred to above and the following Decisions. In HINDUSTAN STEEL LTD. vs. DILIP CONSTRUCTION CO., AIR 1969 SC 1238, it has been held as follows:-
“The Stamp Act is a fiscal measure enacted to secure revenue for the State on certain classes of instruments. It is not enacted to arm a litigant with a weapon of technicality to meet the case of his opponents. The stringent provisions of the Act are conceived in the interest of the revenue. Once that object is secured according to law, the party staking his claim on the instrument will not be defeated on the ground of the initial defect in the instrument.”
In JAGESHAR NAIK vs. COLLECTOR OF JAUNPUR, , it has been held as follows:-
“Section 61(1) of the Stamp Act 1899 (Central Act which is analogus to Section 34 of the Karnataka Stamp Act 1957) does not require an express order declaring a document to be duly stamped and admitting it in evidence. It covers an implied finding that the document is duly stamped. When an instrument is admitted in evidence, it is required to be exhibited, i.e., to be endorsed with the particulars mentioned in Rr.4 and 6 of Order 13, Civil P.C. The reference in Section 61(1) to the making of an order admitting an instrument in evidence is to the endorsing on it of the statement of its having been admitted in evidence as required by Order 13, Rule 4, Civil P.C.
Nor is it necessary that the order must further recite that the instrument is duly stamped. There is a presumption in favour of the regularity of proceedings by a Court, So, when a Court admits an instrument liable to be stamped in evidence and even makes an express order “admitted in evidence”, it must be presumed to have found it to be duly stamped.”
In GUNI RAM AND ANOTHER vs. KODAI AND OTHERS, , it has been held that:-
“An omission to mark a document admitted in evidence as exhibited and giving it a number is a mere curable procedural irregularity and not an illegality.”
10. The learned Counsel for the petitioners did not dispute the propositions of law laid down in these Decisions. But he contended they have no application to the facts of the case on hand because Ex.P1 in this case cannot be said to have been ‘admitted in evidence’ even though it has been marked as an exhibit for identifying purposes. In this regard he brought to my notice certain observations made by the Trial Court in the impugned order and also relied on certain Decisions.
11. In para 7 of the impugned order, the Trial Court has observed as follows:-
“Admittedly, in the present case, no endorsement has been made by the Court as provided under Order 13 Rule 4(1) of C.P.C. on the document in question.”
The learned Counsel for the petitioners contended that when no such endorsement has been made, obviously the document Ex.P1 cannot be said to have been admitted in evidence. In support of this argument he relied on the following Decisions:
In SITARAM AND ORS. v. THAKURDAS AND ORS., AIR 1919 Nagpur 141 it has been held:-
“The expression “admitted in evidence” in Section 36 means the act of letting the document in as part of the evidence as a result of judicial determination of the question whether it can be admitted in evidence or not. In other words, the Court admitting it must have applied its mind consciously to the question whether the document was admissible or not;”
In ATTILI VENKANNA vs. PARASURAM BYAS AND ANOTHER, AIR 1929 Madras 522 it has been held:
“Placing Judge’s initials on a document by a third person by means of a rubber stamp cannot amount to initialling by the Judge.”
Further it is held:
“A document, although endorsed according to Order 13, Rule 4, cannot be deemed to be admitted in evidence, if that endorsement is made without the Judge having applied his mind to its admissibility, and so can be rejected inspite of such endorsement:”
In the case on hand, the case of the 1st respondent is much weaker because admittedly even the endorsement under Order 13, Rule 4 C.P.C. has not been made on Ex.P1. In KUPPAMMAL vs. Mu. Ve. PETHANNA CHETTY, AIR 1956 Madras 250 @ 253 it has been held as follows:-
“The mere fact that the endorsement on the document as required under Order 13 Rule 4 CPC has been made should not in every case be considered sufficient to hold that the document has been admitted. In cases where no objection has been raised as to the admissibility on the ground of insufficiency of stamps and an endorsement of admission under Order 13, Rule 4 is made and objection to such admissibility is not taken even at any stage of the trial of the suit, it will not be open to any party to raise the objection to appeal, before any other forum to which the matter might be taken up.
But to hold that by the mere mechanical act of stamping the endorsement under Order 13, Rule 4 the Court has applied its mind as to the admissibility of the document, when the first issue as in the present case, viz., whether the suit is maintainable as the pronote does not bear the revenue stamp is pending decision, would be to deny the Court the right to reject the document if it is found that it has been sufficiently stamped and therefore inadmissible in evidence. So long as the objection has not been considered by the Court, the endorsemnnt under Order 13, Rule 4 could be considered only to be mechanical act and not the result of the exercise of the judicial mind as to its admissibility.
But if in the course of the trial no objection is taken at all and even if the document is insufficiently stamped and inadmissible in evidence but has been admitted in evidence with the required endorsement under Order 13, Rule 4 and eventhough in such a case the Court could not be said to have consciously admitted it examining the question of sufficiency of stamps the Court must in the circumstances be deemed to have exercised its judicial mind and admitted it and the question cannot therefore be reopened in appeal.
I am inclined to agree with respect with the view taken by the Bench of this Court in ‘AIR 1929 MAD 522 (B)’, that admission must be the result of the Court considering the admissibility of the document if the admissibility is questioned during the trial and the document must not be considered to be admitted by the mere endorsement under Order 13 Rule 4 appearing on the document. In the present case, however, I have no doubt that the fact that it has been endorsed under Order 13, Rule 4 would not amount to an admission of the document as the question as to the maintainability of the suit when the pronote did not bear the revenue stamps was one of the matters in issue in the suit.”
In the case on hand, I.A.XII has been filed raising objections to the admissibility of Ex.P1 and asking for a decision on the same before the cross-examination of P.W.1 is taken up.
12. In KOLLI ERANNA AND ORS. vs. BELLAMKONDATHIMMAIAH AND ORS., , it has been held as follows:-
“Order 13, Rule 4(1) of the Civil Procedure Code prescribes that there shall be endorsed on every document which has been admitted in evidence in the suit, the number and title of the suit, the name of the person producing the document, the date on which it was produced and a statement of its having been so admitted. The endorsement shall be signed or initialled by the judge. A document lacking the last requirement cannot be said to be admitted in evidence.”
It is important to note that in this Decision the case relied on by the learned Counsel for the 1st respondent has been referred to and has been distinguished. It is pointed out at page 186 that: –
“A close perusal of the judgment of the Supreme Court in that particular case shows that the documents in question, which were two hundis marked as Exs.P1 and P2, bore the endorsements “admitted in evidence” under the signature of the Court. The endorsements made on the two documents clearly shows that they were admitted in evidence.”
In the case on hand also, admittedly there is no such endorsement on Ex.P1. Hence, the learned Counsel for the petitioner was right when he submitted that the Decision in , is not applicable to this case.
13. The learned Counsel for the 1st respondent tried to contend that as per the wordings in Order 13, Rule 4(1) C.P.C., the action taken by the Court in admitting the document precedes the act of marking the endorsement on the document and therefore the act of marking the endorsement is only a ministerial act, the omission of which is curable. In this regard he brought to my notice the wordings of the said provision which reads as follows:-
“Order 13, Rule 4(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:-
xxx xxx xxx”
Even accepting this argument, it may be seen, as pointed out by the learned Counsel for the petitioner, there is nothing on record to show that the Court has applied its mind to the prior act of examining whether the document Ex.P1 is admissible in evidence. The second act namely marking the endorsement under Order 13, Rule 4(1) C.P.C. also has not been made admittedly. It is no doubt true that the defendants did not raise any objections at the time of marking the document in question as Ex.P1. But I do not think it absolves the responsibility placed on the Court in examining the document for admissibility. The facts of the case disclose that according to the plaintiff himself Ex.P1 represented an agreement of sale, a completed contract whereas the defendants have contended that the document indicates only a proposal and is not a completed contract. It is neither necessary nor proper for this Court to express any opinion on this aspect as it may prejudice the case of either party before the Trial Court. But what is important to note is that the admissibility of the document Ex.P1 which is not stamped was a serious question to be considered by the Trial Court at the time of marking the document. There is nothing on record to show that the Trial Court had applied its mind consciously to the question whether the document was admissible or not. By no stretch of imagination could it be said in this case that the document has been admitted in evidence. Therefore, the Decisions relied on, on behalf of the 1st respondent, have no application to the case. On the other hand, the Decisions relied on by the learned Counsel for the petitioners are applicable and they fully support his contention that the document Ex.P1 cannot be said to have been admitted in evidence. Therefore, the impugned order passed by the Trial Court rejecting I.A.XII cannot be sustained. The Revision Petition has to be allowed.
14. Now a question arises as to what is the order that has to be passed in this Revision Petition. I have set out the prayers made in I.A.XII in para 3 above. Obviously none of those prayers can be granted because with regard to prayers (i) and (ii), the plaintiff cannot be compelled to pay the duty and penalty if such duty and penalty is payable on Ex.P1 under the law. It is for the plaintiff to decide. The prayer (iii) depends upon whether the plaintiff pays the duty or penalty on Ex.P1 if it is payable under law. So, in my opinion, the proper order that could be passed is to keep open the entire question of the admissibility of the document Ex.P1 leaving it to be decided by the Trial Court at the time of the final decision of the suit.
15. For the reasons stated above, the Revision Petition is allowed and the impugned order passed by the Trial Court on I.A.XII on 18.2.1995 rejecting the application is set aside. On I.A.XII it is ordered that the question of admissibility of Ex.P1 in evidence is kept open to be decided by the Trial Court at the time of the final decision of the suit. It is open to both the parties to urge whatever contentions they have on that question. It is hereby made clear that the defendants may cross-examine P.W.1 with regard to Ex.P1 and it does not come in their way of urging their contentions regarding its admissibility at the time of the final decision of the suit. The Trial Court is directed to give an opportunity to the learned Counsel for both the parties to argue on this point at the time of the final decision of the suit and decide the matter in accordance with law. I also find it necessary to make it clear that in case the plaintiff, during the course of trial makes an application for getting Ex.P1 impounded by the authorities under the Stamp Act, 1957, the Trial Court should decide such an application on merits after hearing both the parties. Parties to bear their own costs in this Revision Petition.