- (1.) By filing CO 627 of 2011 the petitioner challenges the order impugned dated 20th January, 2011 passed in Title Suit no.243 of 1982 by the Learned 5th Civil Court (Junior Division) at Alipore. The case of the petitioner in brief is as follows. a) That the predecessor-in-interest of the opposite parties, one late Dhruva Roy instituted Title Suit no.243 of 1982 against the petitioner before the Learned 5th Civil Court (Junior Division) at Alipore praying, inter alia, for a decree for specific performance of contract and permanent injunction in respect of the suit property. b) That the present petitioner in CO 627 of 2011 is the defendant and resisted the suit by filing written statement. The present petitionerdefendant contended before the Learned Trial Court that the property agreement for sale (Bayna Patra) is not a genuine one but manufactured for the purpose of the suit. According to the present petitioner-defendant the said Dhruva Roy obtained his signature on a blank piece of paper by way of security against a loan amount of Rs.1,000 given to the petitioner-defendant. However, the petitioner never executed any agreement for sale in respect of the suit property in favour of the late Dhruva Roy. c) That at the time of giving deposition PW1, one Sri Ujjwal Bhowmick deposed as the authorized representative of the substituted plaintiffs and filed an affidavit-in-chief under Order 18 Rule 4 of the Code of Civil Procedure (for short the CPC) on 20th September, 2010 and thereafter tendered the said affidavit-in-chief on the 22nd of November, 2010. During his deposition the said Ujjwal Bhowmick tendered a piece of writing on a plain paper showing it to be the alleged agreement for sale and praying before the Learned Trial Court to mark the same as an exhibited document. d) The petitioner-defendant thereafter filed an application under Section 151 of the CPC for expunging the said document marked as exbt.-1 contending, inter alia that the alleged agreement for sale is not stamped and requires to be properly stamped prior to be admissible in evidence. The additional point was taken by the petitioner-defendant that the document was not proved in accordance with law. e) The present opposite parties-plaintiffs did not file any written objection to the said petition under Section 151 of the CPC but contested the same at the time of hearing. On contested hearing the Learned Trial Court vide order dated 28th January, 2011 passed in Title Suit no.243 of 1982 was pleased to reject the petition under Section 151 of the CPC filed by the present petitioner-defendant. f) The Learned Trial Court by the order impugned held that even an unregistered sale deed could be received in evidence to prove the agreement between the parties though it may not itself constitute a contract to transfer the property. In this connection the Learned Trial Court relied upon a judgment of the Hon'ble Apex Court reported in Civil Appeal no.3192 of 2010 (arising out of SLP (C) no.1451 of 2009 vide its order dated 12th April, 2010.
(2.) In this connection, the Learned Trial Court was pleased to take notice of the objection raised on behalf of the present OP-plaintiff to the effect that the Court is not prevented from considering the value of a document so exhibited at the appropriate time and such consideration on the document being exhibited does not mean that the document is accepted beyond proof.
(3.) Sri Dilip Mondal, Learned Counsel appearing on behalf of the petitioner has submitted that the order impugned of the Learned Trial Court dated 28th January, 2011 is cryptic and a non-speaking order. Sri Mondal has further argued that there is no application of Section 36 of the Indian Stamp Act. He has also relied upon Section 35 of the Indian Stamp Act.;