KRISHNA Vs. SANJEEV

JUDGEMENT

(1.) THE petitioner-plaintiff has filed a suit in O. S. No. 56/2001 on the file of the Principal Civil Judge (Senior Division), Bagalkot, against the respondent - defendant for recovery of a sum of Rs. 1,24,500/- with costs etc. The respondent-defendant has. filed written statement contesting the said plaint. After framing of the issues when the case was posted for evidence, the petitioner-plaintiff has filed his affidavit by way of examination-in-chief and in the affidavit itself he marked the suit document as per Ex. P1. The learned Trial judge, on 3. 2. 2003, took the said affidavit as oral evidence by way of examination- in-chief of the plaintiff. Further, in the order sheet it is stated that the documents Ex. P. 1 to P4 are marked and then the case was posted for cross- examination of PW-1 to 10. 2. 2003. Thereafter the defendant has made an application for recalling the order dated 3. 2. 2003 marking the said document. The said application is purported to be under Section 34 of the Karnataka stamp Act read with Section 151 of the Code of Civil Procedure requesting the Court to hear the admissibility of the document Ex. P. 1. The said application was opposed by the petitioner contending that in view of the mandatory requirement of Section 35 of the karnataka Stamp Act, once a document is admitted in evidence, thereafter it is not to be questioned either in very same proceedings or in the higher Courts, the objection regarding marking of the document. The learned Trial Judge after considering the rival contentions, held that before a document is marked in evidence, witness was to be put in the witness box for getting the documents marked on his behalf so that there would be an opportunity to other side to object for marking of the said document on the question of admissibility, and in the instant case, the Court itself has marked the said document without giving an opportunity to the other side to put forth their objections as regards admissibility of the document and therefore the Court allowed the said application thereby keeping the question of admissibility to be heard and decided after hearing the defendant in the suit. Aggrieved by the said order, the present Writ Petition is filed.

(2.) LEARNED Counsel for the petitioner contends that once a document has been admitted in evidence, the same shall not be questioned at any stage in the same suit and in the other proceedings. When once the defendant has no objection for marking of the document by the Court, it is not open to the defendant to seek permission to raise objection after it is marked. Therefore, he submits that the impugned order is liable to be quashed. Secondly, he contended that in view of the law declared by this Court in the case of K. ANJANEYA SETTY vs K. H. RANGAIAH SETTYI, the question of marking of the said document can be considered at the time of final disposal and therefore the question considering the admiss biliy of the document would not arise. Seen from any angle, it is liable to be quashed.

(3.) SECTION 35 of the Karnataka Stamp Act, 1957, reads as under:-Section 35: Admission of instrument where not to be questioned :- Where an instrument has been admitted in evidence such admission shall not, except as provided in Section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. "