C.R.P.No.4174 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 31.01.2023

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

C.R.P.No.4174 of 2022

and

C.M.P.No.21838 of 2022

S.Thanikachalam

... Petitioner

Vs.

M.Perumal

... Respondent

Prayer: Civil Revision Petition is filed under Article 227 of the Constitution

of India, to set aside the fair and decretal order dated 22.09.2022, made in

I.A.No.462 of 2022 in O.S.No.118 of 2016 on the file of the Court of the 1^st

Additional District and Sessions Judge, (FAC), Cuddalore.

For Petitioner

: Mr.V.Radhakrishnan

Senior Counsel

For Mr.S.kadarkarai

For Respondent

: Mr.D.Ravichander

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C.R.P.No.4174 of 2022

O R D E R

The civil revision petition on hand has been instituted challenging the

fair and decreetal order dated 22.09.2022 passed in I.A.No.462 of 2022 in

O.S.No.118 of 2016.

2. The revision petitioner is the defendant and the respondent

instituted a Suit for recovery of money.

3. The undisputed facts between the parties are that the documents

namely Ex.A1 to Ex.A9 marked by the respondent / plaintiff in the Suit was

allowed to be marked with objection by the revision petitioner / defendant.

The trial is in progress and the evidence was closed.

4. Question arises, whether the order impugned passed in I.A.No.462

of 2022, permitting the respondent / plaintiff to cure the defective payment

of stamp duty marked in the documents Ex.A1 to Ex.A9 with objection is in

consonance with the provisions of the Indian Stamp Act, 1899 and the Code

of Civil Procedure, 1908.

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C.R.P.No.4174 of 2022

5. The learned Senior Counsel appearing on behalf of the revision

petitioner mainly contended that such a course adopted by the Trial Court is

impermissible, in view of the fact that the documents are not admissible in

evidence and more so, at the time of presentation. It is not in dispute that the

documents Ex.A1 to Ex.A9 were marked with objections. While so, at later

point of time, the Court cannot allow the respondent / plaintiff to cure the

defects, which is incurable under the provisions of the Indian Stamp Act.

6. Curative procedures adopted by the order of the Trial Court caused

greater prejudice to the revision petitioner / defendant in establishing their

case, since those hand written receipts marked with objections may be taken

as undue advantage by the respondent / plaintiff for the purpose of securing

relief in the Suit.

7. In support of the contentions, the learned Senior Counsel appearing

on behalf of the revision petitioner relied on the judgments of the Hon'ble

Supreme Court of India in the case of Bipin Shantilal Panchal Vs. State of

Gujarat and Another reported in [CDJ 2001 SC 119], wherein, the Apex

Court observed in paragraph 14 that “If the Court finds at the final stage

that the objection so raised is sustainable the Judge or Magistrate can

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C.R.P.No.4174 of 2022

keep such evidence excluded from consideration. In our view there is no

illegality in adopting such a course”.

8. Relying on the above observation made by the Apex Court, the

learned Senior Counsel for the revision petitioner reiterated that in the

present case, admittedly, the Stamps were not fixed by the respondent /

plaintiff at the time of presentation of documents marked as Ex.A1 to Ex.A9.

Thus, the said defect is impermissible and therefore, the order impugned is

liable to be set aside.

9. In the case of Subramaniam Vs. Gunasundari reported in [(2007)

2 MLJ 241], the Madras High Court made an observation as follows:

“In the result, this Civil Revision Petition

is allowed in apart and the order of the trial

court modified. The trial court is directed to

ascertain the stamp duty and penalty payable

upon the disputed document, then call upon the

party who wants to rely on those documents, to

pay t