( 1 ) THIS revision is filed under Article 227 of the Constitution of India being aggrieved by an Order dated 28-1-2004 made in I. A. No. 62 of 2004 in O. S. No. 71 of 1998 on the file of the learned I Additional District Judge, rajahmundry, wherein the petition filed by respondents 1 and 2 herein under Order XIII rule 4 read with Section 151 of the Code of civil Procedure to direct the petitioner herein to pay stamp duty and penalty and obtain registration of the document i. e. Ex. B-38 as per law in the time stipulated by the Court, was allowed.

( 2 ) THE suit is filed for partition of the plaint schedule properties by metes and bounds. During the pendency of the suit, when D. W. 6 (3rd defendant) was examined by commission, a carbon copy of the family settlement deed dated 9-7-1987 was marked through him. Thereafter, defendant Nos. 4 and 5 filed the present I. A. stating that unless and until Ex. B-38 is duly stamped and registered, the same cannot be admitted in evidence. The 3rd defendant (petitioner herein) resisted the same saying that once the document is marked, defendants 4 and 5 cannot question the admissibility of the same. The Trial Court, after hearing both sides and considering the material on record, ordered the petition and directed the 3rd defendant to pay the stamp duty and penalty on Ex. B-38 on or before 9-2-2004. Aggrieved by the same, the present revision is filed.

( 3 ) LEARNED counsel for the petitioner submitted that once the document is marked, the question of paying stamp duty and registration is not necessary. Even otherwise, ex. B-38 is meant for collateral purpose. He has drawn attention of the Court to Orders 13 and 18 of C. PC. and Rules 113 and 115of the civil Rules of Practice and submitted that once the document is marked, the question of its admissibility cannot be taken up for adjudication by the Court below.

( 4 ) THE learned counsel for the petitioner also submitted that in the instant case while disposing of I. A. No. 2242 of 2003 the Court below received the documents by observing that documents 1, 2, 4 and 8 mentioned in the said application shall be received, subject to proof and relevancy, whereas documents 3, 5, 6 and 9 to 11 shall be received subject to objection raised by the Advocate for the plaintiffs (respondents 3 to 6 herein ). Further, it was observed in the main suit on 22-12-2003 that the document Nos. 3, 5, 6 and 9 to 11 shall be marked subject to the objections that may be raised by the plaintiffs and the Advocate-Commissioner was permitted to continue the chief-examination on the side of defendants 3 and 26 to 28. Those documents were supposed to be marked by the Court before tendering D. W. 6 for cross-examination. But contrary to the above direction, the Court marked Exs. B-30 to B-34 only and failed to mark the documents 1, 2, 5 and 12 filed along with the chief-examination affidavit of D. W. 6. There was a docket endorsement on 31-12-2003 that documents 1, 2, 5 and 12 filed along with the chief-examination affidavit of D. W. 6 were not marked and they have to be marked as exs. B-35 to B-38. On that day, the question of admissibility of documents did not come up for consideration and there was no objection; therefore, they were marked. Hence, the question of further filing the present petition to oppose the admission of Ex. B-38 in evidence and calling upon the revision petitioner-3rd defendant to pay stamp duty and penalty for the purpose of admission in evidence does not arise. In support of his contentions, the learned counsel relied upon the decisions in Basvaiah Naidu v. Venkateswarulu, Vemi Reddy Kota Reddy v. Vemi Reddy Prabhakar Reddy and r. V. E. Venkatachala Gounder v. Arulmigu visweswaraswami and V. P. Temple.

( 5 ) IN Basavaiah Naidu s case, while interpreting Section 36 of the Stamp Act, vis-a-vis Order XIII Rules 3, 4 and 6 of C. P. C. this Court observed that Section 36 of the stamp Act prohibits the rejection of a document once it has been admitted i

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