M K ABDU Vs. M GOPALAKRISHNAN

JUDGEMENT

(1.) Petitioner is the sole defendant in a suit for money on the basis of Ext.P1 document. The petitioner denies execution of Ext.P1. It is inter alia contended that Ext.Pl is not an agreement as described in the document and is a bond. The petitioner contended that the bond is not properly stamped and is hence not admissible unless the requisite stamp duty and penalty are paid. On the contentions raised inter alia an issue was raised as to whether Ext.P1 document is a bond or agreement.

(2.) The matter was listed for trial. There was no specific insistence that the issue as to whether Ext.Pl is a bond or agreement must be decided as a preliminary issue. Parties went to trial. Proof affidavit was filed by the plaintiff. The court below, considered the objection that Ext.P1 must be reckoned as a bond and not an agreement and should not be admitted in evidence without payment of the requisite stamp duty/ penalty. Vide Ext.P3 order passed by the learned Munsiff in the course of recording of evidence of the plaintiff, the contention that Ext.P1 is a bond and not an agreement was considered. The question was answered against the petitioner and in favour of the respondent/plaintiff. The relevant finding is available in Ext.P3 (order passed in the course of recording the chief examination).

(3.) . Petitioner has approached this Court aggrieved by Ext.P3 order. The learned Counsel for the petitioner raises various contentions. First of all, it is contended that the issue as to whether the document in question is a bond or an agreement should have been decided as a preliminary issue and in not deciding the same as a preliminary issue, there is failure/miscarriage of justice.