High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 02..02..2007CoramThe Hon'ble Mr. Justice K.CHANDRUC.R.P.(PD) No. 1170 of 20041.K.P.Balaji2.K.P.Chakrapani.. Petitioners/Plaintiffsvs.1.M.Seshadri2.S.Kalavathi .. Respondents/DefendantsPetition filed under Article 227 of the Constitution of India forthe reasons as stated therein.For Petitioners : Mr.V.Lakshmi NarayananFor Respondents:No RepresentationORDERThis Civil Revision Petition has been filed against the order ofdismissal dated 10.11.2003 passed in I.A.No.487 of 2003 in O.S. No.426of 1996 on the file of the Sub-Judge, Hosur.2.The plaintiffs are the revision petitioners and the presentrevision petitions are filed challenging the order of the Sub-Court,Hosur, dated 10.11.2003 made in I.A.No.487 of 2003 in O.S.No.426 of1996. An interim application was filed by the petitioners pendingthe suit for the purpose of considering the objections raised by themwith regard to the admissibility of the alleged sale receipt dated30.5.1990 produced by the defendant during the trial. 3.The suit was instituted by the plaintiffs for passing adecree for the cancellation of the suit sale deeds dated 11.12.1995and to declare them as sham and nominal by the first defendant infavour of the second defendant and also for declaration of the titlesof the plaintiffs with reference to the suit items and for a specificperformance of delivering the suit items to them respectively. Therespondents herein filed written statement wherein a plea was raisedby them with reference to the sale receipt coupled with the GeneralPower of Attorney. A rejoinder was filed by the plaintiffs https://hcservices.ecourts.gov.in/hcservices/ refuting the sale receipt stating that the said documents have beencreated fraudulently and they are not stamped in terms of Section 48(c) of the Indian Stamp Act. Then, they raised the admissibility ofthe said documents before the trial Court by filing the interimapplication in I.A. No.487 of 2003 and contended that under Section 17(b) of the Registration Act, the registration of the sale receipt iscompulsory and since the said document creates transfer of rights andtitles and interest as a deed of conveyance, stamp duty should be paidon the said document as otherwise, it is not admissible in evidence.The respondents filed a counter statement stating that it does notattract any stamp duty and it is only a pointer towards general powerof attorney executed by the parties. 4.The trial Court after hearing the parties, passed an orderdated 10.11.2003 stating that Section 35 of the Indian Stamp Act isnot a bar for accepting the present document and it can be admitted inevidence for collateral purposes. The Court also referred to theearlier proceedings initiated by the petitioners / plaintiffs beforethis Court in C.R.P. No.27 of 2000 challenging the earlier order dated03.12.1999 in I.A. No.427 of 1998. In that, this Court, by an orderdated 06.3.2002, disposed of the Civil Revision Petition by directingthe trial Court to give an opportunity to the defendant to fileadditional written statement after accepting the amendment made by thepetitioners / plaintiffs. 5.I have carefully gone through the arguments of Mr.V.LakshmiNarayanan, learned counsel appearing for the revision petitioners andthe respondents neither present nor been represented by any counseland have perused the records.6.With reference to the maintainability of the revisionpetition under Article 227 of the Constitution of India, the followingdecisions are somewhat helpful to the case of the petitioners.(i)In the decision reported in 2003 (3) M.L.J. 436 [Salem Co-operative Society Sugar Mill Limited, Mohanur vs.Kuppannan], this Court has held that in order to meet theends of justice and to avoid miscarriage of justiceparticularly, when there is a flagrant violation both onthe merits of the case as well as equity in justice,inherent jurisdiction of the High Court under Article 226of the Constitution of India can be invoked. (ii)Further, in the decision reported in 2002 (1) SCC 319[Ouseph Mathai and others vs. M.Abdul Khadir], theSupreme Court has held that wrong decisions may not be aground for exercise of jurisdiction under Article 226 ofthe Constitution of India unless the wrong is referable tograve dereliction of duty and flagrant abuse of power ofsubordinate Courts and Tribunals resulting in graveinjustice to the parties. It is useful to extract https://hcservices.ecourts.gov.in/hcservices/ paragraph 4 of the aforesaid judgment, which reads asfollows:"Para 4: It is not denied that the powersconferred upon the High Court under Articles 226and 227 of the Constitution are extraordinary anddiscretionary powers as distinguished fromordinary statutory powers. No doubt Article 227confers a right of superintendence over all courtsand tribunals throughout the territories inrelation to which it exercises the jurisdictionbut no corresponding right is conferred upon alitigant to invoke the jurisdiction under the saidarticle as a matter of right. In fact power underthis article casts a duty upon the High Court tokeep the inferior courts and tribunals within thelimits of their authority an that they do notcross the limits, ensuring the performance ofduties by such courts and tribunals in accordancewith law conferring powers within the ambit of theenactments creating such courts and tribunals.Only wrong decisions may not be a ground for theexercise of jurisdiction under this article unlessthe wrong is referable to gave dereliction of dutyand flagrant abuse of power by the subordinatecourts and tribunals resulting in grave injusticeto any party."(iii)In the decision reported in (2003) 6 SCC 641 [Statethrough Special Cell, New Delhi vs. Navjot Sandhualias Afshan Guru and others], the Supreme Court, inparagraph 28, held as follows:"Para 28: Thus the law is that Article 227 ofthe Constitution of India gives the High Court thepower of superintendence over all courts andtribunals throughout the territories in relationto which it exercises jurisdiction. Thisjurisdiction cannot be limited or fettered by anyAct of the State legislature. The supervisoryjurisdiction extends to keeping the subordinatetribunals within the limits of their authority andto seeing that they obey the law. The powersunder Article 227 are wide and can be used to meetthe ends of justice. They can be used tointerfere even with an interlocutory order.However the power under Article 227 is adiscretionary power and it is difficult toattribute to an order of the High Court, such asource of power, when the High Court itself doesnot in terms purport to exercise any such https://hcservices.ecourts.gov.in/hcservices/ discretionary power. It is settled law thatthis power of judicial superintendence, underArticle 227, must be exercised sparingly and onlyto keep subordinate courts and tribunals withinthe bounds of their authority and not to correctmere errors. Further, where the statute bansthe exercise of revisional powers it would requirevery exceptional circumstances to warrantinterference under Article 227 of the Constitutionof India since the power of superintendence wasnot meant to circumvent statutory law. It issettled law that the jurisdiction under Article227 could not be exercised "as the cloak of anappeal in disguise."[Emphasis added]Therefore, the present petition filed under Article 227 of theConstitution of India is clearly maintainable, in view of the barcreated under Section 35 of the Indian Stamp Act being overlooked bythe trial Court. 7.Coming to the merits of the objections raised by thepetitioners, it is necessary to refer to the following decisions:The Calcutta High Court vide its judgment reported in 2002 (2)CLJ 449 [Biswajit Chakraborty vs. Mira Sen Ray] while dealingwith a case where an objection was raised that the document tenderedwas insufficiently stamped, observed as follows:"My reading of the provisions of Sections33,35,38,39,40 & 61 of the Indian Stamp Act, 1899 isthat when a document is tendered in evidence by a partyand an objection is raised by the other side that thedocument is insufficiently stamped, at that stage, thecourt assumes the jurisdiction to impound the documentas it was obligatory to apply the mind of the court inaccordance with the relevant provisions of the saidAct. The object of Section 33 is to protect therevenue and as such the court or such person, asreferred to in the said section, must however, exercisethe powers as envisaged under the said section, ifnecessary suo motu, irrespective of the raising ofobjection by any of the party."8.In another decision reported in 2005 (1) CLJ (Cal.) 249[Mujibar Rahman Mondal v. Md.Abdulla Molla and others], theCalcutta High Court held as follows:"... The court has to judicially determine the matteras soon as the document is tendered in evidence andbefore it is marked as an 'exhibit' in the case. Once https://hcservices.ecourts.gov.in/hcservices/ a document has been marked as an "exhibit" in the caseand has been used by the parties in examination andcross-examination of their witnesses, Section 36 comesinto operation. Once a document has been admitted inevidence, it is not open either to the trial courtitself or to a court of appeal or revision to go behindthat order. In the case on hand, the document inquestion was marked exhibit with objection which leadsto show that the objection as to admissibility on theground that the instrument is not duly stamped has notbeen judicially determined but it was merely postponedwith tentatively marking it as an "exhibit". In suchcircumstance, the said provision of Section 36, in myview is not attracted..."9.The Supreme Court in its recent decision reported in JT2006 (9) SCC 483 [Shyamal Kumar Roy v. Sushil Kumar Agarwal] afterreferring to these two decisions, observed in paragraphs 14 and 17 asfollows:"Para 14: Objection as regards admissibility of adocument, thus, is specifically required to be takenthat it was not duly stamped. On such objection onlythe question is required to be determined judicially.............................................................................................Para 17: If no objection had been made by appellantherein in regard to the admissibility of the saiddocument, he, at a later stage, cannot be permitted toturn round and contend that the said document isinadmissible in evidence."10.In fact, similar stand was taken by our High Court in thefollowing reported decisions:-(a)2001 (1) C.T.C. 112 [A.C.Lakshmipathy and another vs.A.M.Chakrapani Reddiar and five others](b)2004 (4) C.T.C. 208 [R.Deivanai Ammal vs. G.MeenakshiAmmal](c)2005 (2) C.T.C. 385 [Amudha vs. K.Jayaraman] 11.For the very same proposition, the learned counsel appearingfor the petitioners also relied on the decision of the Apex Court aswell as our Court and they are as follows:(a)AIR 1978 SC 1393 [Ram Rattan (dead) by legal representativesvs. Bajrang Lal and others](b)1994 (1 M.L.J. 474 [Arumugha Pillai vs. Vadivel Pillai](c)1998 (1) L.W. 443 [Rajamanickam and 3 others v. https://hcservices.ecourts.gov.in/hcservices/ Elangovan and 4 others] 12.However, one need not multiply the decisions to decide thepresent revision petition. In the light of the latest pronouncementand the objection having been raised by the plaintiffs, the order ofthe trial Court, overruling the same, is without any basis.Therefore, the Civil Revision Petition shall stand allowed. Thetrial Court is directed to exclude marking the document allegedlydescribed as a sale receipt dated 30.5.1990 and proceed with the suitin accordance with law. However, there will be no order as to costs.Consequently, C.M.P. No.11382 of 2004 will stand closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargriToThe Sub Judge Hosur+1cc to Mr.V.Raghavachari, Advocate Sr 6382NG (CO)km/7.2. C.R.P. (PD) No.1170 of 2004