Jaleel Thazhe Puliyullathil and Others v. Muhammedunni O.T.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 6[TH] DAY OF APRIL 2022 / 16TH CHAITHRA, 1944** **OP(C) NO. 1704 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OS 127/2019 OF SUB COURT,** ## **KOZHIKODE** ## **PETITIONERS/DEFENDANTS:** - **1 JALEEL THAZHE PULIYULLATHIL AGED 50 YEARS** - **S/O. KUNHABDULLA, NADAPURAM PANCHAYATH, KALLACHI P.O, CHIYYUR, VISHNUMANGALAM, KALLACHI AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT** - **2 ASYA ASEES, AGED 48 YEARS D/O. KUHABDULLA. THAZHE PULIYULLATHIL, PALAKKAVEETIL P.O, THALAYI, EDACHERI AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT** - **3 NASEERA MUHAMMED, AGED 42 YEARS** - **D/O. KUNHABDULLA, NAGATH, VELAM P.O, KUTTIADY, KUTTIADY VILLAGE, VATAKARA TALUK, KOZHIKODE DISTRICT** - **4 SEENATH RAHEEM O.C, AGED 40 YEARS** - **D/O. KUNHABDULLA, CHEDIYAMKANDY, VALAYANNUR, P.O KUTTIADY, KUTTIADY VILLAGE, VATAKARA TALUK, KOZHIKODE DISTRICT** - **5 SOUDA ISMAYIL AGED 39 YEARS D/O KUNHABDULLA, OTTAPPILAVULLATHIL, NARIPPATTA, P.O KALLACHI, KALLACHI AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.** **BY ADV R.K.MURALEEDHARAN** OP(C) NO. 1704 OF 2020 2 ## **RESPONDENT/PLAINTIFF:** **MUHAMMEDUNNI O.T. AGED 59 YEARS S/O. BEERAN KUTTY, THEKKEYIL HOUSE, CHETTIAMKANDY, KINASSERI HOUSE, GURUVAYOORAPPAN COLLEGE, VALAYANAD, AMSOM DESOM, KOZHIKODE TALUK 673 014** **BY ADVS. SRI.VINOD SINGH CHERIYAN SRI.T.M.KHALID SMT.K.P.SUSMITHA** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON** **06.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C) NO. 1704 OF 2020 3 ## **JUDGMENT** Dated this the 6[th] day of April, 2022 This Original Petition has been filed under Article 227 of the Constitution of India. 2. The defendants in OS No.127/2019 impugn order dated 04.11.2020 where by the learned Sub Judge negatived the contention raised by the defendants to the effect that Ext.A1 document marked while examining PW1 is not an agreement but the same is a bond. 3. Heard the learned counsel for the petitioners as well as the respondents in detail. 4. It is argued by the learned counsel for the petitioners that, in the written statement no specific contention raised to the effect that the suit document is not an agreement but a bond. He also conceded that though specific objection not raised at the time of marking the document, the Sub Judge could not have acted mechanically in the matter of marking documents and a duty is cast 4 OP(C) NO. 1704 OF 2020 upon the Sub Judge to verify the veracity of the documents before marking the same as evidence. In this connection, the learned counsel placed the decision of this Court reported in _**[2011 (3) KHC 86] Lakshamanan T.C v. Vanaja and Others.**_ Para 9 of the judgment is relevant and the same is extracted herein; “ _9. The expression 'admitted in evidence' occurring in S.36 of the Indian Stamp Act means the act of letting the document in as part of the evidence as a result of judicial determination of the question whether it can be admitted in evidence or not. The Court must apply its mind to the question whether the document is admissible or not. It was pointed out that had the Court below, before commencement of cross - examination, read the chief affidavit in Court and asked whether the defendant has got any objection in admitting the disputed document or had the Court gone into the question whether the document was sufficiently stamped or not, this controversy would not have arisen at all. The learned counsel for the petitioner would submit that, here the document was proved and tendered in evidence and was marked as Ext. A1 to which no objection was raised by the defendant before the commencement of the cross - examination or even in the course of the argument. In order that a document may be considered as 'admitted in evidence' the Court should have applied its mind to the question of admissibility from the point of view of the Stamp Law, but once the Court rightly or wrongly decides to admit a document, so far as the parties are concerned, the matter is closed and the admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument had not been duly stamped.”_ ## 5. The learned counsel also placed another decision reported in **[1956 KHC 40].** The relevant portion of the judgment is 5 OP(C) NO. 1704 OF 2020 ## as under; _“It is thus obvious that before the document is admitted in the manner prescribed in the Code, the Presiding Judge must necessarily apply his mind to the admissibility of the document. As already pointed out there has in fact been no admission of the impugned documents in evidence in the suit, but they have been merely marked for reference for the purpose of an interlocutory application. Such marking can in no sense be said to be the same as admission of the documents in evidence as contemplated by O.13 R.4 C.P.C. If there has been such an admission of the documents in evidence, the bar imposed by S.38 of the Travancore - Cochin Stamp Act would have stood in the way of the defendant questioning the admissibility of these documents at a later stage.”_ 6. It is to be noted that the decision in Lakshamanan T.C's case also this Court referred the decision reported _**AIR 1961 SC 1655, Javar Chand v. Pukhraj Surana**_ to appraise the position as follows; _“Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross – examination of their witnesses, S.36 comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a Court of Appeal or Revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”_ 7. Going by the impugned order, the learned Sub Judge observed that, no objection raised at the time of marking document 6 OP(C) NO. 1704 OF 2020 and the objection as regards to the nature of Ext.A1, as that of a bond has been taken at a belated stage. In the impugned judgment, the learned Sub Judge also referred another decision of this Court reported in _**AIR 1990 Kera.122, Chandri v. Kambrath Kanarakutty,**_ wherein this Court observed thus; _“ The document was admitted in evidence with the consent and that will preclude the defendant from contending that since one of the stamps is not cancelled, the document is not admissible. Once the document is admitted the case of the plaintiff stands proved.”_ 8. In this case, the learned counsel for the respondent/plaintiff contends that in the plaint, the plaintiff raised specific contention throughout stating that as part of settlement, an agreement was executed and thereby the defendants agreed to pay Rs.62,00,000/-. However, the payment was defaulted and thereby, the plaintiff had instituted the suit. He also referred the narration in the cause of action column portion of the plaint as well as the averments in the chief affidavit filed by the plaintiff in that line. 9. It is true that in the written statement filed by the defendants, execution of the agreement was emphatically denied 7 OP(C) NO. 1704 OF 2020 ## and the relevant portion of the written statement is as under; “ _The further averments in para three of the plaint that the plaintiff lost all his savings by the act of Late Kunhabdulla and the matter was talked over in the presence of mediators and decided to pay Rs.62,00,000/- to plaintiff and as such an agreement was executed on 30.01.2015 by plaintiff and Late Kunhabdulla and signed in the presence of witnesses are utter false and those are hereby denied.”_ 10. But nowhere in the written statement, the defendants raised a contention that the suit document is not an 'agreement' but a 'bond'. It is relevant to note further that during cross examination of PW1, the counsel for the defendants cross examined PW1 also referring to Ext.A1 as an agreement, repeating question in that line. So the materials available in this case would go to show that parties went on evidence stating Ext.A1 as an 'agreement'. 11. In this context, it is apposite to read the so-called agreement, before conclusion. Ext.P3 is the copy of the said agreement produced before this Court. When the terms of Ext.P3 is read together in juxta position with the matters discussed above, Ext.A1(Ext.P3 herein) is nothing but an agreement and therefore, OP(C) NO. 1704 OF 2020 8 the contention raised by the petitioners herein stating Ext.A1 as a bond cannot sustain and therefore the learned Sub Judge rightly negatived the contention as per the impugned order and the said order does not suffer from any arbitrariness, perversity or absolute illegality. Hence, this Original Petition stands dismissed. ## **Sd/-** **A. BADHARUDEEN JUDGE** spk OP(C) NO. 1704 OF 2020 9 ## **APPENDIX OF OP(C) 1704/2020** ## **PETITIONER EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE PLAINT IN OS NO. 127/2019 ON THE FILE OF SUBORDINATE JUDGES COURT, KOZHIKODE EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS** **EXHIBIT P3 A TRUE COPY OF THE DOCUMENT DATED 30-012015 EXHIBIT P4 A TRUE COPY OF THE MEMO FILED BY THE COUNSEL FOR THE PETITIONERS DATED 29-092020** - **EXHIBIT P5 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT DATED 01-10-2020** **EXHIBIT P6 TRUE COPY OF THE PRINTOUT OF THE DAILY STATUS OF OS NO. 127/2019 OBTAINED FROM THE WEBSITE** **EXHIBIT P7 A TRUE COPY OF THE ORDER ISSUED IN METRO IN OS NO. 127/2019 DATED 04-11-2020** **RESPONDENT'S/S EXHIBITS : NIL**