CONWOOD AGENCIES PVT LTD Vs. NEMDEO PANDURANG PANCHAL

JUDGEMENT

(1.) THIS petition, filed under article 227 of the Constitution of India, raises a short question as to whether an instrument, of which an admissibility is in serious dispute on the ground that it was not duly stamped and not registered, could be received in evidence and the opposite pariy be invited to cross-examine the witness in respect of such instrument without resolving the question as regards its admissibility.

(2.) THIS petition is directed against the order dated 13-9-2004, passed in the course of the trial by the learned Judge of the Bombay city Civil Court, by winch he has allowed the plaintiff to examine Ramdhar Ramgarib Kurmi (Patel) to prove a document (Kararnama) dated 26-4-1972 (for short, "the said document") of which an admissibility was seriously challenged, without deciding the objection raised by the petitioner. St was held that the said document, could he received in evidence for collateral purpose. The said document was produced by the plaintiff along with his affidavit of examination-in-chief and in view of the petitioner-defendart's objection that it was not duly stamped and registered, it was marked "x" for identification.

(3.) RESPONDENT No. 1 filed a suit in the City Civil Court, hearing L. C. Suit No. 246 of 2002 against respondent No. 2 and the petitioner for declaration that the notice dated 21-1-2002 issued under section 351 of the bombay Municipal Corporation Act, 1888 and the order passed by the Assistant commissioner of the Bombay Municipal corporation dated 14-5-2002 in respect of the questioned structure, was bad-in-law, void, null and unconstitutional. The trial in the said suit commenced on 30-6-2004. Respondent No. 1 filed his affidavit of examination-in-chief on 2-8-2004 and along with the affidavit the said document was produced by respondent No. 1. The petitioner took a serious objection to the production and exhibition of the said document on the ground that it was insufficiently stamped and was not registered. In view thereof, though the said document was allowed to be filed along with the affidavit it was not exhibited. It was marked "x" for identification. In view thereof, respondent No. 1 sought to examine Ramdhar ramgarib Kurmi by filing his affidavit of examination-in-chief to prove the said document. The petitioner objected to the examination of Ramdhar Ramgarib Kurmi on the ground that the said document was insufficiently stamped and was not registered. The paragraphs 4 and 5 of the affidavit of examination-in-chief of Ramdhar Ramgarib kurmi show that he was being examined to prove the said document which has not been allowed in evidence so far and has been marked "x" for identification. According to the petitioner, the said document suffers from the infirmity under section 33 read with sections 34 and 35 of the Bombay Stamps Act, 1958 (for short, "act of 1958") as also under section 17 read with section 49 of the Indian registration Act, 1908 (for short, "registration act" ). It was urged that if Ramdhar Ramgarib kurmi is allowed to prove the said document, it will amount to giving effect to insufficiently stamped document which cannot be used even for a collateral purpose and to corroborate oral evidence for the purposes of determining factum of ownership or factum of possession. The learned Judge, while dealing with the objection, though did not decide the admissibiiity of the document, held that such document is admissible in evidence for collateral purpose.