G.RAMAMOORTHY Vs. M.S.R.SIVAKUMAR

JUDGEMENT

(1.) Plaintiff in O.S. No. 676 of 1999 is the revision petitioner. The suit was filed by the revision petitioner for permanent injunction and during the examination of DW1, Exs. B1 to B42 were marked on 18.10.2010 and when the case was posted for cross-examination, on 19.10.2010, a representation was made by the counsel for the plaintiff stating that documents Exs. B3, 5, 7 and 8 were not duly stamped and without paying stamp duty penalty, the documents cannot be received in evidence and accepting the representation made by the revision petitioner, the court below directed the first defendant to pay the stamp duty penalty for those documents. Thereafter, a memorandum was filed at the instance of the first defendant stating that having regard to the judgment reported in Kaliya Perumal v. Dhandapani, 2010 2 LW 644, once a document is marked in evidence, objection under section 35 of the Stamp Act cannot be raised and section 36 of the Stamp Act prohibits such objection being raised at a later point of time and that memorandum was rejected by the court below on 17.2.2011 stating that the order passed on 19.10.2010 was a judicial order and the same cannot be questioned by filing a memorandum. Thereafter, the first defendant filed an interlocutory application to modify the order dated 19.10.2010 and that application was rejected without numbering the same by order dated 27.4.2011. Thereafter, on 6.6.2011, the court below, suo motu, reviewed the order dated 19.10.2010 holding that as per the judgment reported in , : 2010-2-LW 644, mere marking of documents would not make the documents admissible in evidence and the contents, admissibility and relevancy have to be proved by the party who placed the document before the court as Exhibit and recalled the order dated 19.10.2010. This order is challenged in this revision.

(2.) Mr. T.S. Baskaran, learned counsel for the revision petitioner submitted that the court below has no power to suo motu review the order and having passed the order dated 19.10.2010 calling upon the first respondent to pay the stamp duty penalty and confirmed the same by order dated 17.2.2011 by rejecting the memorandum filed by the first respondent and thereafter, rejecting the interlocutory application filed by the first respondent to the same effect without numbering the said application, the court below should not have passed the order on 6.6.2011 recalling its earlier order and the court below also has not properly appreciated the judgments of the Honourable Supreme Court in this regard and also the provisions of sections 33 and 35 of the Indian Stamp Act. The learned counsel further submitted that under section 36 of the Indian Stamp Act, once a document is admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit on the ground that the instrument has not been duly stamped. The court is not powerless calling upon the party to pay stamp duty penalty having regard to the provision of sections 33 and 35 of the Indian Stamp Act. He also relied upon the judgment reported in Avinash Kumar Chauhan v. Vijay Krishna Mishra, 2009 2 SCC 532 and Ram Rattan v. Bajrang Lal, 1978 3 SCC 236.

(3.) Mr. Ravichander, learned counsel for the first respondent submitted that having regard to the provisions of section 36 of the Indian Stamp Act, wherein a total prohibition is imposed to raise any objection regarding the admissibility of the document on the ground that the document was not duly stamped once the document was admitted in evidence, the court below has realised the mistake committed by it in directing the revision petitioner to pay stamp duty penalty for admitting the document in evidence and rectified the mistake by reviewing its own order and therefore, the order of the court below need not be interfered with. He further submitted that the court below has rightly relied upon the judgment in 2010-2-LW 644 wherein this court has held that once a document is admitted in evidence, it cannot be called in question at any stage of the suit and therefore, recalled its order which was wrongly made by the court below.