A.S. BHALLA Vs. GHANSHYAM DAS PURUSWANI

JUDGEMENT

(1.) This Misc. petition has been filed by the defendant being aggrieved by order dated 24.6.17 passed by the Court of 3rd Civil Judge, Class II, Gwalior, in civil suit No.255-A/2014, whereby the learned trial Court has dismissed the application filed under Order 13 Rule 3 of the Code of Civil Procedure.

(2.) It is petitioner's contention that in the civil suit petitioner was proceeded ex-parte, and therefore, when the rent note was exhibited as Ex.P/5, he could not object to its admissibility on the ground of insufficiency of stamp on the rent note, and therefore, he had moved an application under Order 13 Rule 3 CPC once ex-parte proceedings were set aside, but such application has been rejected overlooking the provisions contained in Order 9 Rule 7 CPC on the ground that after exhibiting the rent deed no order for its impounding can be passed. The trial Court has held that after setting aside the ex-parte proceedings already exhibited documents could not be un- exhibited and the defendant can cross-examine the plaintiff as to the validity of the document inasmuch as mere exhibition of a document does not mean that it has been accepted in the evidence.

(3.) Learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in the case of Arjun Singh Vs. Mohindra Kumar and others as reported in AIR 1964 SC 993 para 19 wherein the ratio is that inherent power of Court cannot override the express provisions and distinction between Order 9 Rule 7 and Order 9 Rule 13 has been drawn. Learned counsel for the petitioner has also placed reliance on the judgment of the Supreme Court in the case of Ram Ratan (Dead) by Legal Representatives Vs. Bajrang Lal and others as reported in AIR 1978 SC 1393 wherein the ratio is that if instrument not duly stamped admitted in evidence subject to objection, it is the duty of the Court to judicially determine objection before the suit is finally disposed of.