Full Judgment Text
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CASE NO.:
Appeal (civil) 4499 of 2001
PETITIONER:
NAWAL KISHORE TULARA
Vs.
RESPONDENT:
DINESH CHAND GUPTA & ORS.
DATE OF JUDGMENT: 25/07/2001
BENCH:
S.P. Bharucha, Y.K. Sabharwal & Brijesh Kumar
JUDGMENT:
Brijesh Kumar, J.
Leave granted. Heard learned counsel for the parties.
The facts necessary for disposal of this appeal briefly are
that one Ram Sahay filed Civil Suit No. 31/93 in the Court of Civil
Judge (A.B.) Gangapur City (SM), praying for relief of declaration
of ownership of Shop No.141 in Bazar Katla and also for possession
over the said shop. The plaintiff died during the pendency of the
proceedings and is being represented through his legal representatives
as respondents in this appeal. The present appellant viz. Nawal
Kishore, defendant in the suit, resisted the claim of the plaintiff and
pleaded that the plaintiff Ram Sahay had entered into an agreement,
with the defendant, to sell Shop No.141 situate at Bazar Katla for a
sum of Rs.7,100/- out of which a sum of Rs.1,100/- had been paid
and the balance amount was to be paid at the time of registration of
the sale deed. The said agreement dated 17/19.8.1985 is in writing
on a stamp of Rs.5/-. During the course of the examination-in-chief
of the defendant (present appellant), the plaintiff objected to exhibit
the document dated 17/19.8.1985, purported to be an agreement to
sell, on the ground, that the document was unregistered and
insufficiently stamped. The objection has been upheld by the trial
court, by its order dated 31.10.2000 holding that the document was
not admissible in evidence for any purpose.
The appellant preferred a civil revision in the High Court,
against the aforesaid order of the trial court. It appears that a plea
was raised on behalf of the petitioner-revisionist that the document in
question was executed in the year 1985, whereas the amendment in
the Indian Registration Act for compulsory registration of agreements
to sell, in the State of Rajasthan, came into force in the year 1989.
The other plea raised is that an insufficiently stamped document can
very well be impounded under the provisions of the Stamp Act.
The revision was however rejected by the High Court
observing as follows:
Even though the reasons given by the trial court
for not exhibiting the document cannot be
sustained but the perusal of the document..
The High Court thereafter goes on to consider the document on its
merit leaving aside the question of its admissibility any more and
observed that signatures of Ram Sahay are not admitted by the other
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side nor the document bears the acceptance of the proposer therefore
the contract could not be said to be a valid agreement under the
relevant provisions of the Contract Act. Finally it is observed in such
circumstances document is not an agreement, as is being argued, now,
in the eyes of law. No injustice has been done to the petitioner by not
admitting the said document
A perusal of the order passed by the High Court and the
discussion held clearly shows that the court had completely mis-
directed itself in embarking upon an enquiry into the validity of the
document and ultimately, in holding that the document, sought to be
exhibited by the defendant could not be held to be a valid agreement
under the relevant provisions of the Contract Act. As a matter of fact,
the question for consideration before the revisional court was confined
to the admissibility of the document on the grounds raised by the
plaintiff. The revisional court, after holding that the reasons given by
the trial court, for not exhibiting the document, could not be sustained,
exceeded its jurisdiction in entering into the question of validity of the
document on merits in the light of the provisions of the Contract Act.
The order of the High Court virtually decided the suit. It is beyond
the scope of the revision petition and suffers from patent illegality on
the face of it causing prejudice to the case of the defendant.
In view of the discussion held above, the impugned order
passed by the High Court is set aside and the case is remanded to the
High Court for its decision afresh, in accordance with law.
We are informed that the trial court has now decided the
suit and a first appeal is pending. The order of the trial court on the
suit and further proceedings thereafter at any stage and orders
passed thereon shall be subject to the orders on the revision petition
by the High Court.
Costs easy.
------------------------J.
(S.P. Bharucha)
-----------------------J.
(Y.K. Sabharwal)
-----------------------J.
(Brijesh Kumar)
July 25, 2001
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