SHRI TOR MAL HARMUKH RAY CHARITABLE TRUST, JHUNJHUNU AND OTHERS Vs. ADDITIONAL DISTRICT AND SESSIONS JUDGE NO.2, JHUNJHUNU

JUDGEMENT

(1.) Under challenge is the order dated 11.10.2013 passed by the Additional District Judge No.2, Jhunjhunu dismissing the petitioner-defendant's (hereinafter 'defendant') application under Section 17(1)(f) of the Registration Act, 1908 (hereinafter 'the Act of 1908') and Section 35 of the Rajasthan Stamp Act, 1998 (hereinafter 'the Act of 1998') read with Order 13 Rule 3 and 7 CPC praying that the agreements to sell dated 28.7.2000 and 26.9.2003, which had been exhibited as Exhibit-I and III respectively in the examination in chief of the respondents-plaintiffs (hereinafter 'plaintiffs'), be held to be inadmissible for reasons of being under-stamped and unregistered.

(2.) Mr.Intjar Ali, counsel for the defendant fairly submitted that the objection with regard to the agreement to sell being unregistered and hence inadmissible in evidence cannot stand in view of the proviso to Section 49 of the Act of 1908. He however emphatically submitted that as the agreements to sell dated 28.7.2000 and 26.9.2003 were un-stamped and it was the duty of the trial court in terms of Order 13 Rule 3, 4 and 7 and Rule 50 to 55 of General Rule (Civil) not to allow their being exhibited. The Trial Court having failed in its duty and allowed the said agreements to sell being exhibited contrary to Section 35 of the Act of 1998, the plaintiff's application for excluding them from being considered as admissible ought to have been allowed.

(3.) Mr.B.L. Agarwal counsel for the respondent-plaintiff (hereinafter 'plaintiff') submitted that the case set up by the defendant with regard to the admissibility of agreements to sell dated 28.07.2000 and 26.9.2003 was/ is barred by Section 40 of the Act of 1998. He submitted that Section 40 of the Act of 1998 provides that where an instrument has been admitted in evidence, such admission shall not be called in question at any stage of the same suit or proceeding on the ground that the instrument had not been duly stamped. Mr.B.L. Agarwal submitted that resultantly, the agreements to sell dated 28.07.2000 and 26.9.2003 having been admitted and marked Exhibit I and III by the Trial Court in the plaintiff's examination in chief in court in the presence of defendants and absence of any objection at the relevant time no issue with regard to their admissibility could then subsequently be made out by the defendant Mr.B.L. Agarwal also further relied upon the judgment of the Apex Court in the case of Javer Chand and Others v. Pukhraj Surana reported in [(AIR)1961 Supreme Court 1655] where it has been held that once a document has been marked as an exhibit in the case and admitted and interalia used by the parties in examination in chief, it is not open either for the Trial Court or to a Court of Appeal or Revision to go behind that said order on ground of being unstamped or under-stamped. On the facts of the case at hand, Mr.B.L. Agarwal pointed out that the objection as to the agreements to sell dated 28.07.2000 and 26.9.2003 being inadmissible and marked as exhibits before the Trial Court was only raised on the date subsequent to the marking of the said document as exhibits in the plaintiff's examination in chief without demur or even at the commencement of the cross-examination of the plaintiff by the defendant. Instead adjournment was sought and granted. The objection as to the admissibility of the agreements to sell in issue for reason of being unstamped was raised only subsequently on the next date i.e. at the "subsequent stage" when it could not be in terms of Section 40 of the Act of 1998. It was thus rightly dismissed. Mr.B.L. Agarwal submitted that there is thus no occasion in the state of law enunciated by the Apex Court and the facts of the case to interfere with the impugned order dated 11.10.2013.