Bench allowed C.R.P. deemarking unregistered unstamped lease deed copy as it was solely used for rate of rent proving which is main transaction at law.
Civil Revision Petition allowed; impugned order dated 30.12.2022 in I.A.508 of 2022 set aside and allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE MS JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.278 of 2023
ORDER :
The Civil Revision Petition is filed under Article 227 of Constitution of India against the order, dated 30.12.2022, dismissing the petition in I.A.No.508 of 2022 in O.S.No.144 of 2013 on the file of the Court of XI Additional District Judge, Visakhapatnam filed by the defendant under Order XIII Rule 3 r/w Section 151 CPC to reject Ex.A6 which is a copy of an unregistered lease deed dated 25.11.2011 as inadmissible in evidence by deexhibiting/ demarking it.
2. Heard Sri Neelotpal Ganji , learned counsel representing Sri Challa Gunaranjan, learned counsel for the petitioner. No representation for the respondent.
3. The respondent/plaintiff filed the suit against the petitioner/defendant claiming damages of Rs.55,22,658/- and subsequent interest and for suit costs on the ground that there was an agreement dated 02.03.2006 for construction of show rooms by the defendant and deliver possession within a period 18 months, for which the plaintiff agreed to pay Rs.37,02,000/-, but the defendant postponed to deliver the possession of the show rooms, though completed the construction and unauthorizedly leased out the same
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to Medikonda Ramachandra Rao under lease deed dated 05.07.2008 basing on which third party filed a suit in O.S.No.706 of 2010 on the file of the Court of II Additional Junior Civil Judge, Visakhapatnam against the plaintiff for permanent injunction and also filed I.A.No.376 of 2010 for interim injunction, but the petition was dismissed. The plaintiff further stated that since the defendant complied the contract in part only, the amount already paid by the plaintiff to the defendant is in excess of Rs.7,98,000/- and that due to the delay in handing over the possession of the show rooms, the plaintiff suffered loss rent of Rs.70/- per square feet per month. There was exchange of notice between the plaintiff and defendant before filing of the suit. The plaintiff sought the relief of damages alleged the loss of rent due to delay handing over the possession of the show room assessing the rent @ Rs.70/- from square feet per month from 05.03.2010 to 26.01.2011 by restricting the claim to 3 years only, though according to him he is entitled to the damages from 2007 to January, 2011.
4. The suit claim was resisted by filing written statement. During the course of trial, in the evidence of plaintiff an attested copy of lease deed dated 25.11.2011 allegedly executed between the vendee of the plaintiff in favour of the Toonz Retail India Private Limited was marked as Ex.A6 due to consent of the other side.
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5 . However, later, the defendant filed I.A.No.508 of 2022 to reject Ex.A6 by de-exhibiting it alleging that it is inadmissible in evidence. The contention of the petitioner/defendant is that after the defendant changed the counsel, the defendant was advised that a lease deed of immovable property is compulsorily registerable document and must be duly stamped, whereas, as can be seen from Ex.A6, its original deed was executed on payment of stamp duty of Rs.100/- only and as such, the original lease deed cannot be received in evidence and so its copy also cannot be received in evidence. It is further advised that the copy of the original lease deed cannot be received in evidence, even for any collateral transaction as per the proviso Section 49 of the Registration Act and also that secondary evidence document cannot be received as evidence without there being foundation for its introduction. The petitioner further stated that when the objection is that the document itself is inadmissible, such a plea can be raised even after the document is marked and also even in appeal or revision. Therefore, the petitioner filed the petition for the said purpose.
6 . The petition was opposed by filing counter stating that the document in Ex.A6 was marked with consent as is mentioned in the petition and thereby the party having consented, cannot be allowed to go back and further more the said document is only to evidence
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the existing rate of rent in the area of the subject matter property
and the document does not relate to any right or title in property claimed by the plaintiff and therefore, the deficit stamp duty and non-registration cannot be raised as objections. It is further denied that Ex.A6 cannot be received without any foundation for its introduction. It is further stated that there are no grounds or reasons to reject the document and that filing of the petition is yet another attempt of the defendant to delay the proceedings. It is further stated that a collateral transaction is a transaction other than the transaction affecting the immovable property, but which is in no way connected with it and that Ex.A6 does not create any right or title to any immovable property concerning the suit and so the same can be received for considering any collateral purpose. The respondent prayed to dismiss the petition as not maintainable.
7. After hearing both sides, dismissed the petition observing that the proviso to Section 49 of the Registration Act permits an unregistered document to be received as evidence of any collateral transaction not required to be effected by registered document and since Ex.A6 was intended to be used in evidence with regard to only the rate of rent in prevailing in the local area and consent was also given to receive the said document in evidence when it was marked as Ex.A6, now the defendant cannot seek the relief. Insofar as the
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deficiency of the stamp duty which prevent a document to be received in evidence is concerned, the trial Court observed that the document is intended only for collateral purpose and further observed that the petition was filed at a belated stage. Finally it concluded that the objection raised against considering the document in evidence for collateral purpose can be decided at the time of judgment and at the relevant time as it was already marked with consent. Having been aggrieved by the same, the present revision petition is filed.
8. The learned counsel for the petitioner submitted that the document marked as Ex.A6 required registration and stamp duty, but it lacks both and therefore, the same cannot be admitted in evidence and that the consent given for marking of the document does not legalize the petition which goes to the root of the objection as to its inadmissibility in evidence as per law. It is strongly contended that the requirement of collection of stamp duty under Section 35 can be enforced only against the original instrument, but not a copy of the original document and similarly the benefit in Section 36 of the Stamp Act can be given only with reference to the original instrument, but not a copy of the original document. In this regard, he placed reliance on the decision of this High Court in Sure
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Ranga Murali Krishna Reddy Vs. Sure Yeeri Vara Prasada
Reddy and others1 wherein it was held at para 12 as follows:
“12. In the decision in the case of Avinash Kumar Chauhan v. Vijay Krishna Mishra [2009 (1) ALD 109 (SC)], the Supreme Court referred to the following ratio in the decision in the case of T. Bhaskar Rao vs. T. Gabriel and other [AIR 1981 AP 175].
"It is now well settled that there is no prohibition under section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under section 35 of the Stamp Act."
The trial Court, in the case on hand did not examine whether the original unregistered partition deed is properly stamped, but held that CC of it can be admitted for collateral purpose. In the event the trial Court were to find that the original is not properly stamped the question of admitting the copy of the same would not arise as the question whether or not stamp duty can be collected on a copy of a document is no longer res integra . In Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao [AIR 1971 SC 1070], the Supreme Court emphatically held that stamp duty cannot be collected on a copy of document, if the original was not subjected to stamp duty at all. The ratio in this cited decision is as follows:
"The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The
1 2018 (4) ALT 616
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second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfill the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act. If Section 35 only deals with original instruments and not copies, Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words 'an instrument' in Section 36 must have the same meaning as that in Section 35. The Legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding."
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In the above decision, the Supreme Court held thus:
"Section 36 only lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the first stage. It did not create any exemption in the case of secondary evidence which a copy would undoubtedly be. In the case before the Judicial Committee the copy was one other than the final draft of the original document which had been lost through no fault on the part of the person intending to prove it and yet it was held that the Stamp Act ruled out its admissibility in evidence." The Supreme Court also held as follows:
For the same reason we must hold that the dictum in Satyavati v. Pallayya [AIR 1937 Mad 431 at p. 432] that 'Section 36 will also apply when secondary evidence of an instrument not duly stamped had been wrongly admitted' is not good law.'
Be it noted that in the above said decision, the Supreme Court quoted and approved the judgment of the Privy Council in Raja of Bobbili v. Inuganti China Sitaramaswami Garu : (1900) ILR 23 Madras 49. The same principle was followed by this Court in Akkam Laxmi v. Thosha Bhoomaiah : 2002 (4) ALD 808. Thus, the law is well settled that stamp duty and penalty, if any, payable are collectable only on the original document, i.e., primary evidence but not on a copy of the document, i.e., secondary evidence. Therefore, the observation of the Court below in the impugned order that the document can be admitted for collateral purpose is unsustainable as the trial Court did not advert to and examine the aspect as to whether the original unregistered partition deed in question is duly stamped or not.”
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He has drawn the attention of this Court to the observations of the Supreme Court in Jupudi Kesava Rao v. Pulavarthi Venkata Subba Rao2 holding that the dictum in Satyavathi v. Pallayya3 that Section 36 of the Stamp Act will also apply when secondary evidence of an instrument not duly stamped had been wrongly admitted is not good law.
9. This Court in Jatti Veera Venkata Satyam v Bosukonda Chinnadevi4 , observed as follows:
“A distinction is to be made as to the objection on the ground of want of registration and objection raised for want of sufficiency of stamp duty required. In case of insufficiency of stamp duty, Section 36 of the Indian Stamp Act prohibits raising such objection subsequent to receipt of document in evidence, whereas, no such similar provision is found in the Registration Act. On the other hand, Section 49 of the Registration Act permits receipt of unregistered documents in evidence for certain purposes, in spite of the requirement of law for such document to be registered.”
10 . Admittedly, the document in question is lease deed. Therefore, it requires registration as well as stamp duty as per the provisions under the law governing both aspects. It was executed on the stamp worth Rs.100/- only, and therefore, it is ex facie
2 AIR 1971 SC 1070
3 AIR 1937 Madras 431
4 C.R.P.No.715 of 2020, dt.19.10.2022
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deficit in stamp duty. As the document was not registered though required as per Section 17 of the Registration Act, it is inadmissible in evidence by virtue of Section 49 of the Registration Act. However, Section 49 itself carved out exceptions to the general principle of inadmissibility of a document in evidence for want of registration. Therefore, a document though requires registration, when not registered, can be received in evidence for the proof of collateral transaction which does not require registration. Here, the contention is that the document is relied on for the main purpose of establishing one of the terms of contract of lease regarding the rate of rent. Therefore, it cannot be said as a collateral transaction which can be established through the said unregistered document. When the said document is sought to be used in evidence for the purpose of establishing the rate of rent, as it is not a collateral transaction, the said document cannot be received in evidence. Of course, since the objection on the ground of want of registration can be decided not only at the time of raising objection, but also even at a later stage, in the present case, it may not be the only ground to de-exhibit document already marked as exhibit A6. Even when an unregistered document is received for collateral transaction, it must be indicted or else, it may be used for main transaction also. But,
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no such specification was made. Unlike in case of Section 36 of the Stamp Act, there is no bar to object a document if unregistered.
11 . With regard to stamp duty, as is already noted, it is the deficit in stamp duty required. Therefore, by virtue of Section 35 of the Indian Stamp Act, it cannot be received in evidence. However, by virtue of Section 36 of the Stamp Act, according to the counsel arguing for the plaintiff, the objection cannot be raised subsequent to marking of the document in evidence.
12 . First of all, when an objection as to admissibility of a document is raised on the ground of want of stamp duty, the same shall be decided at the time of objection as it is a curable defect and the same cannot be postponed to a later stage like in the case of objection regarding the registration. But, in the present case, the objection was not raised before the marking of the document, however it is to be noted that the document being a copy only, no deficit stamp duty can be collected.
13 . On a bare reading of Section 36 of the Stamp Act, it appears that such an objection cannot be entertained after a document is received in evidence. However, in the decision of this Court in Syed Yousuf Ali Vs. Mod. Yousuf5 it was held that even under
5 2016 (3) ALD 235
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Article 227 of the Constitution, this Court can interfere with the order of a trial Court passed by lack, excessive, illegal or irregular exercise of jurisdiction. This decision is cited with approval by this High Court in Sure Ranga Murali Krishna Reddy Vs. Sure Yerri Vara Prasada Reddy and others6 . Since in the present case, the trial Court exercised its jurisdiction by marking a document against law, such an order is not precluded from judicial scrutiny under Article 227 of the Constitution. Thus, the contention that exhibit A6 cannot be ordered to be demarked by taking shelter under Section 36 of the Stamp Act cannot be sustained.
14 . Viewed from any angle, since exhibit A6 suffers from want of registration and also stamp duty, apart from being a copy only, the same is inadmissible in evidence and needs to be demarked.
15 . Apart from all the above, an objection was also raised in the petition that exhibit A6 is only a secondary evidence and without establishing the foundational facts to receive the secondary evidence, receiving exhibit A6 is erroneous exercise of jurisdiction. This line of argument cannot be accepted since it was held by this Court that even a photostat copy which is nothing but secondary evidence can be received in evidence with consent of the other side party. In this regard, it is apt to refer the decision in Land 6 2018 (5) ALD 396= 2018 (4) ALT 616
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Acquisition Officer, Vijayawada Thermal Station Vs.
Nutalapati Venkata Rao7 , wherein it was held that if secondary evidence is allowed to be marked for one party without objection at the trial, no objection can be permitted to be raised by the opposite party at any later stage in the same Court in the appeal that conditions for adducing secondary evidence have not been made out initially. However, in view of the foregoing discussion regarding demarking of exhibit A6, the order impugned in the revision is liable to be set aside.
16 . In the result, the Civil Revision Petition is allowed, setting aside the order, dated 30.12.2022, passed in I.A.No.508 of 2022 in O.S.No.144 of 2013 and as a sequel, I.A.No.508 of 2022 is allowed.
There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________ JUSTICE B.S.BHANUMATHI
14.09.2023 SAB/RAR
7 AIR 1991 AP 31
3 issues framed by the court
Whether an unregistered lease deed can be admitted as evidence for proving the rate of rent as a collateral transaction.
Whether an unstamped document admits to secondary evidence under Section 35 and 36 of the Stamp Act.
Whether consent to admissibility of a document cures defects in registration or stamp duty.
Colour shows how this judgement treated each authority
Avinash Kumar Chauhan v. Vijay Krishna MishraRelied on¶28
Avinash Kumar Chauhan v. Vijay Krishna Mishra [2009 (1) ALD 109 (SC)]
T. Bhaskar Rao vs. T. GabrielRelied on¶28
T. Bhaskar Rao vs. T. Gabriel and other [AIR 1981 AP 175] · Who else cites this
Jupudi Kesava Rao v. Pulavarthi Venkata SubbaraoRelied on¶30
Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao [AIR 1971 SC 1070] · Who else cites this
Sure Ranga Murali Krishna Reddy Vs. Sure Yeeri Vara Prasada ReddyRelied on¶23
Sure Ranga Murali Krishna Reddy Vs. Sure Yeeri Vara Prasada Reddy and others 2018 (4) ALT 616
Satyavati v. PallayyaDoubted¶40
Satyavati v. Pallayya [AIR 1937 Mad 431 at p. 432] · Who else cites this
Raja of Bobbili v. Inuganti China Sitaramaswami GaruRelied on¶41
Raja of Bobbili v. Inuganti China Sitaramaswami Garu : (1900) ILR 23 Madras 49 · Who else cites this
Akkam Laxmi v. Thosha BhoomaiahApplied¶41
Akkam Laxmi v. Thosha Bhoomaiah : 2002 (4) ALD 808
Jatti Veera Venkata Satyam v Bosukonda ChinnadeviApplied¶45
Jatti Veera Venkata Satyam v Bosukonda Chinnadevi C.R.P.No.715 of 2020
Syed Yousuf Ali Vs. Mod. YousufRelied on¶59
Syed Yousuf Ali Vs. Mod. Yousuf 2016 (3) ALD 235
Land Acquisition Officer, Vijayawada Thermal Station Vs. Nutalapati Venkata RaoRelied on¶65
Land Acquisition Officer, Vijayawada Thermal Station Vs. Nutalapati Venkata Rao 2018 (5) ALD 396= 2018 (4) ALT 616
6 provisions across 4 enactments
Challa Gunaranjan
Medikonda Ramachandra Rao
B.S.Bhanumathi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
