- (1.) this civil revision petition is filed under Section 50(1) of the Karnataka Rent Control Act, 1965 (hereinafter referred to as 'the act') against the order dated 7-3-91 passed by the small causes judge, Bangalore in hrc No. 152/83, that the alleged xerox copy of the agreement for sale is inadmissible in evidence. I have heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the records of the case.
(2.) when the petitioner was being examined in the courtbelow, the learned counsel for the petitioner wanted to mark the xerox copy of the agreement for sale. The learned counsel for the respondent objected to that on the ground that what was sought to be marked was only copy of the document which was not admissible, duty and penalty cannot be collected on that document and since the document is inadmissible it cannot be admitted in evidence. The learned counsel for the petitioner in this case has relied on baldeudas shivlal and another v filmistan distributors (india) (p) ltd. And others case, wherein it has been held as follows: (ii) by ordering that a question may properly be put to a witness who was examined, no case was decided by the trial court within the meaning of Section 115 of the Code of Civil Procedure. The expression 'case' is not limited in its import to the entirety of the matter in dispute in a proceeding. Such an interpretation may result in certain cases in denying relief to the aggrieved litigant where it is most needed. But equally, it is not every order of the court in the course of a suit that amounts to a case decided. A case may be said to be decided only if the court adjudicates, for the purpose of this suit, some right or obligation of the parties in controversy." in that very ruling, the Supreme Court has also held as follows: "it may also be observed that by ordering that a question may properly to put to a witness who was being examined no case was decided by the trial court. The expression "case" is not limited in its import to the entirety of the matter in dispute in an action. This court observed in major s.s. khanna v brig. F.j. dillon, that the expression "case" is a word of comprehensive import; it includes a civil proceeding and is not restricted by anything contained in Section 115 of the code to the entirety of the proceeding in a civil court. To interpret the expression "case" as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction of the exercise of powers of superintendence and may result in certain cases in denying relief to the aggrieved litigant where it is most needed and may result in the preparation of gross injustice. But it was not decided in major s.s. khanna's case that every order of the court in the course of a suit amounts to a case decided. A case may be said to be decided, if the court adjudicate for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of Section 115 of the Code of Civil Procedure." now the question is whether the order that is passed by the court below can be said to be a case decided so as to permit this court to exercise its powers under Section 115 of CPC. In the case of raghunath bhandary v seetharama punja, it has been held by this court as follows: "a decision given by a court regarding the admissibility of a document under the Stamp Act has to be challenged at that stage itself and therefore is revisable under Section 115, CPC." but subsequent to this case, this court has given another ruling reported in the case of m.c.madhura v bharatiya vidya bhavan and others, wherein it has been held as follows: "an order passed by the court during the hearing of a suit holding that certain documents sought to be produced through a witness were inadmissible and irrelevant would not amount to a case decided and is not revisable." his lordship have held in that case that the earlier ruling of this court in raghunath bhandary's case regarding admissibility of a document under the Stamp Act which has to be challenged at that stage itself. According to the tenure of the ruling if a decision is given by the court regarding the admissibility of a document under the Stamp Act, that has to be challenged at that stage itself and it will be revisable. Since this is an order holding that a document is not admissible in evidence as the original was not stamped, it will become a case concluded and the petitioner will be entitled to challenge it by way of revision.
(3.) it has been contended by the learned counsel for thepetitioner that the agreement was only an agreement and it does not require to be stamped and it is also not required to be registered under the proviso of Section 17 of the Indian Registration Act. He also contended that the said document can be relied upon by the petitioner under proviso to Section 53 of Transfer Of Property Act. Section 2(j) of the Karnataka Stamp Act 1957, defines instrument as follows: "(j) "instrument" includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded." the agreement of sale also creates a right in favour of a party in whose favour the document is executed to get a sale deed in his favour as per the terms of the document. Therefore, it becomes instrument as defined under Section 2(j) of the Karnataka Stamp Act and this document comes under article 5(a) of Karnataka Stamp Act, 1957. The said document is required to be stamped at present with Rs. 107- and earlier with Rs. 5/-. When a document is required to be stamped and when it is not stamped, the same cannot be admitted in evidence unless duty and penalty is collected on that original document. Admittedly, in this case, the original document which is alleged to have been lost is now written on a plain paper and no stamp duty was paid. Under these circumstances, the lower court has come to the conclusion that the petitioner cannot be allowed to pay duty and penalty on a xerox copy of the original document which was not stamped. The lower court has relied on a decision reported in jupudi kesava rao v pulavarthi venkata subbarao and others,wherein it has been held that "sections 35 and 36 are not concerned with copy of document. A party can only be allowed to rely on a document which is an instrument for purposes of these sections. Section 36 does not apply to secondary evidence adduced in proof of the contents of document unstamped or insufficiently stamped." the Hon'ble Supreme Court has held as follows: "the first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped, would be tantamount to the document being acted upon by the person having law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered-by Section 63 of the Indian Evidence Act would not fulfill the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. 'Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act." the learned counsel for the petitioner contended that under Section 17 of the Indian Registration Act read with section 49 of the act and also proviso to Section 53 of Transfer Of Property Act, even an unregistered agreement of sale can be admissible in evidence. The Provisions of Indian Registration Act and the Provisions of the Karnataka Stamp Act are independent of each other. A document may be compulsorily required to be stamped. But it may not be required to be registered compulsorily under the Registration Act. Therefore, this argument of the learned counsel for the petitioner based on the interpretation of Section 17 of the Indian Registration Act will not be acceptable. The learned counsel for the petitioner submitted that the proviso to Section 53-a lays down that a document will be admissible in evidence notwithstanding that it is not registered though required to be registered under any Provisions of law for the time being in force. On the basis of this argument, he contended that even document if not stamped as required by the Stamp Act, it will be admissible under proviso to Section 53 of the Transfer Of Property Act. This argument is also not acceptable because what was sought to be admitted in the case was not the original document but a zerox copy of the document. The agreement of sale becomes admissible under the proviso to Section 53-a of the Transfer Of Property Act. Still what was sought to be was not admittedly agreement of sale but xerox copy of the sale. Even on that count, order of the lower court cannot be found fault with. Even the ruling that is relied upon by the learned counsel for the petitioner AIR 1953 SC 51 will not come to the aid of the petitioner in this case in view of the specific case that there is an agreement of sale in his favour and it is written on an ordinary paper and not on stamped paper. Whereas, the case reported in the Supreme Court ruling is in respect of an agreement which was required to be gathered from the correspondence between the parties. Viewing the matter from any angle, i do not find any grounds to admit this petition. Accordingly, this petition not admitted and is dismissed.;