Important Point – There is obligation on court to decide question of admissibility of documents as secondary evidence before making an endorsement thereon on documents.

JAYANT NATH, J.

CM No. 4047/2017 (exemption)

Allowed subject to all just exceptions.

CM(M) No.124/2017 & CM No. 4046/2017(stay)

1. By the present petition filed under Article 227 of the Constitution of India, the petitioners seek to impugn the order dated 08.12.2016 whereby his application filed under Section 33 of the Indian Stamp Act was deferred for adjudication to the stage of final disposal of the suit.

2. The controversy centres around two brothers regarding a property situated at Vikas Puri, Delhi.

3. The petitioners tendered their evidence as DW1. However two documents namely receipt and agreement to sell which were marked as Ex.RW1/2 and RW1/3 respectively in the affidavit by way of evidence were not accepted as exhibits and were marked as Mark-27 and Mark-28 by the local commissioner in order dated 04.01.2016. On 18.05.2016, the petitioners tendered their witness DW1 for cross-examination subject to orders of the concerned court on his application under Section 33 of the Indian Stamp Act and Section 65 of the Evidence Act for leading secondary evidence.

4. The present application is filed by the petitioners under Section 33 of the Indian Stamp Act and Section 65 of the Evidence Act. The bone of contention of the suit is the documents, namely agreement to sell which is marked as Mark-28 and receipt which is marked as Mark-27. By the present application, it is contended that the originals of these two documents are misplaced. Hence, petitioner may be allowed to lead secondary evidence. It is further stated that as there is an objection by the respondents that the said documents are unstamped and unregistered and are only photocopies of the originals, it is urged that the petitioners may be permitted to pay necessary stamp duty and penalty under Section 33 of the Indian Stamp Act and lead secondary evidence under Section 65 of the Evidence Act.

5. By the impugned order the trial court deferred the decision of this application to the stage of final disposal of the suit.

6. I have heard the learned counsel for the parties.

7. The learned counsel appearing for the petitioners relies upon the judgment of this court in Smt.Shail Kumari v. Smt.Saraswati Devi, 96 (2002) DLT 131 to contend that the legal position settled by this court is that these objections regarding admissibility of documents and mode of proof have to be decided at the initial stage and not deferred.

8. In this context, a reference may be had to the judgment of this court in the case of Smt.Shail Kumari v. Smt.Saraswati Devi (supra). Relevant para 23 of the judgment reads as follows:

“23. The question of admissibility of the document has to be decided at the stage when the document is formally tendered in evidence and proved. Deferring a decision on the question of admissibility of the document and making it part of the evidence by marking exhibit mark on it may lead to complication and in many cases result in grave injustice to the party, who tenders the document. If the question of admissibility of the document and making it part of the evidence by marking exhibit mark on it may lead to complication and in many cases result in grave injustice to the party, who tenders the document. If the question of admissibility of the document is deferred to be decided at the time of hearing of final arguments in many case a party may be deprived of an opportunity to cure a curable defect or supply the deficiency. It is for this very reason that the High Court Rules and Order discussed above lay emphasis on prompt disposal of the objection raised to the admissibility of the document and mode of proof. It may work great injustice in some cases if left undecided till the arguments are heard for disposal of the suit. The objection to the admissibility and the proof of the document should ordinarily be not kept pending and this should be decided promptly as and when they are raised, particularly if raised during the recording of the evidence of a witness who is called to prov