HARI RAM Vs. RATTI

JUDGEMENT

(1.) In this revision petition the Respondent has taken a preliminary objection to the effect that the revision is not maintainable inasmuch as the order whereby the Sub -Judge overruled the objection of the Plaintiff -Petitioner about the admissibility of a document, does not amount to a case decided.

(2.) Shri Hari Ram had brought a suit for possession of Some land through pre -emption on the ground of his being a co -sharer of the property. During the course of cross examination of shri Ratti Ram D.W. 1, a document which was marked -X was put to the witness and the Plaintiff objected to the admission of the document on the ground that the same was not stamped and also that it conveyed interest in property of the value over Rs.100 and as such the document was compulsorily registrable. But the learned Sub -Judge overruled the objection and admitted the same by the impugned order. Now the question is whether in order to maintain a revision petition it is a case decided. The learned Counsel for the Respondent submits that this is not a case decided and he has drawn my attention to various authorities to show that in such a case where there is a question of admissibility of document and the same has been allowed during the course of examination of the witness, it does not amount to a case decided. In Bhachibai alias Kunverbai widow of Shah Thakershi Nenshi, Defendant -Appellant v/s. Shah Virji Devji, Plaintiff -respondent : A.I.R. 1963 Gujarat 241, it has been held that where the Court admits a document or refuses to admit it in evidence, that matter cannot be the subject matter of revision under Sec. 115, Code of Civil Procedure During the course of examination of witnesses, a Court has to give various rulings on the admissibility in evidence of the questions put and answers given. There cannot be a revision against every decision of the Judge allowing the questions to be put or not allowing certain question to be put. When the Court allows a question to be put or refuses the question to be put, that would not amount to deciding a case. Similarly, when the Court allows a document to be admitted in evidence or the Court refuses to allow it, that does not amount to deciding a case, but it amounts to deciding a question regarding the admissibility of certain evidence. Therefore, when the Court decides questions under the Evidence Act, it is not deciding a case, and therefore its decision cannot be the subject matter of revision. It has also been held in Shah Prabudas Ishwardas, Appellant v/s. Coparceners of a joint Hindu family of Shah Bhogilal Nathalal and Ors. Opponents : A.I.R. 1968 Guj 236 that ordinarily, a decision of a question of admissibility of a document would be nothing more than a decision of a question under the Evidence Act and would not amount to a decision of a "case". However, it had also been held that where the decision turned on the question whether the document. was a promissory note within the meaning of Sec. 2(22) of the Stamp Act, it was clearly a question of law but this error of law did not have relation to and was not concerned with the jurisdiction of the subordinate Court, and therefore, none of the three clauses of Sec. 115 was attracted in the case. Therefore, the revision in such a case was not maintainable. In the instant case the question whether it is conveyance deed conveying the interest in the property of more than Rs.100 and as such compulsorily registrable, is also a question of law and this error of law does not have any relation to and is not concerned with the jurisdiction of the subordinate Court so as to entitle the Petitioner to come up in revision. In Waryam Singh and Anr. Petitioners v/s. Bachan Singh and Ors. Respondents, 1969 P.L.R. 420 also it had been held that an order determining nature of a document neither amounts to a case decided nor does it suffer from any defect of jurisdiction and as such, no petition for its revision is competent. In Attar Singh Sunder Singh Plaintiffs Petitioners v/s. Mool Chand Defendant Respondent, A.I.R. 1927 Lah 876, it had been held that where an improperly stamped document has been admitted by the trial Court, no objection can be raised in revision that it was admitted on a misreading of its contents. Similarly in Jahangir Khan Applicant v/s. Jahur and Ors. Opposite Parties, A.I.R. 1952 Raj 129 it had been held that once the document is admitted into evidence the intention of the legislature is that it should not be questioned, at any subsequent stage of the same proceeding on the ground that the document was not admissible for want of stamp duty. It cannot be held that if an objection is raised by the opposite party soon after the order of the lower Court the provisions of Sec. 36 should not be considered to be a bar to a revision application by him. The promptness on the part of the opposite party is no consideration for ignoring the clear provisions of Sec. 36 of the Stamp Act. From these authorities, it would be abundantly clear that the Court while allowing the document to be admitted in evidence the order does not amount to deciding a case but it amounts to deciding a question regarding the admissibility of certain evidence, and, therefore, when the Court decides the question under the Evidence Act its decision cannot be a subject matter of revision under Sec. 115, which says that the High Court may call for any decision of any Court subordinate to such High Court. A revision is maintainable only when the Court has exercised a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. But all these three clauses of Sec. 115 are not involved in deciding the admissibility of the document which is decision of a question under the Evidence Act and which does not amount to a decision of a case. Therefore, in my opinion, the preliminary objection raised by the learned Counsel for the Petitioner appears to tenable.

(3.) The learned Counsel for the Petitioner contended that he has not only invoked Sec. 115 of the Code of Civil Procedure but had also invoked the provision of Sec. 151 of the Civil Procedure Code and Sec. 61 of the Indian Stamp Act. It would be quite clear that in so far as Sec. 115 of the Code of civil procedure is concerned the same is not attracted as already stated because the question of deciding the admissibility of a document during the course of evidence is a question of law, which the Court has decided but it does not amount to a case decided within the meaning of Sec. 115 and in so far as Sec. 151 is concerned, the same relates to the inherent power of the Court and when there is a special provision of revision and the case does not fall within the ambit of Sec. 115, I think the provision of Sec. 151 also cannot be made applicable. In so far as Sec. 61 of the Indian Stamp Act is concerned the same provides for revising the decision of a subordinate Court regarding the sufficiency or insufficiency of the stamp duty paid on instrument. There is a clear provision made in Sec. 36 of the Indian Stamp Act creating a bar for calling in question at any stage of the same suit or proceedings, the admission of the document on the ground that the same has not been duly stamped. The object of Sec. 61 is the protection of the Government revenue and therefore, it authorises the Appellate Court of Court of reference on the application of the Collector to take into consideration the order of a subordinate Court and to ascertain whether Government revenue has suffered and whether a higher duty and penalty than that required by the Court of first instance ought to have been demanded. But the Appellate Court cannot reject a document as inadmissible owing to its not being duly stamped after the document has once been admitted by the trial Court. Therefore, this Sec. 61 will also not assist the learned Counsel for the Petitioner. In N.M.R. Nagappa Chetty and Ors. Defendants Appellants v/s. N.A.A.R. Firm Plaintiff -Respondents, A.I.R. 1925 Mad 1215 it has been held that where a document has been admitted by the trial Judge in evidence it is not open in appeal to question that admission. It is open to the Appellate Court to send the document on for the proper collection of penalty. Similarly in Sree Rama Varaprasada Rice Mill and Anr. Appellants v/s. Takurdas Topandas and Ors. Respondents : A.I.R. 1960 AP 155 it has been held that Court acting under Sec. 61 of the Stamp Act has to regard the instrument as admissible in evidence and at the same time to determine the sufficiency of the duty. The object of Sec. 61 is the protection of Government revenue. This provision does not take away the finality provided for in Sec. 36 as to the admission of instruments by the trial Court. So it is purely the question of the protection of the Government revenue. But in so far as revision with regard to the admissibility of the document is concerned, the same is not maintainable as it is not a case decided as already pointed above. Consequently the submission of the Respondent prevails and the result is that there vision fails and is hereby dismissed but with no order as to costs.