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PETITIONER: JAVER CHAND AND OTHERS

       Vs.

RESPONDENT: PUKHRAJ SURANA

DATE OF JUDGMENT: 25/04/1961

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1961 AIR 1655            1962 SCR  (2) 333  CITATOR INFO :  R          1978 SC1393  (6)

ACT: Document-Hundi-Inadequately             stamped--Exhibited-- Admissibility-Objection  when  to be raised-Courts,  if  can revise or review order admitting document-Marwar Stamp  Act, 1914,  ss. 9 and 11-Marwar Stamp Act, 1947, ss.  35  Proviso (a), 36.

HEADNOTE: The respondent admitted the execution of two Hundis in  suit which  were  tendered  and marked  as  exhibits  but  denied consideration and raised the plea that the hundis  exhibited were  inadmissible in evidence as at the time the  suit  was filed  in  1949 they had not been stamped according  to  the Stamp Law.  When the hundis were executed in December, 1946, the  Marwar Stamp Act of 1914 was in force and ss. 9 and  11 of  that Act authorised the court to realise the full  stamp duty  and penalty in case of unstamped instruments  produced in  evidence,  whereupon the documents  were  admissible  in evidence. The  High Court pointed out that after coming into force  of the  Marwar Stamp Act, 1947, (Similar to Indian  Stamp  Act) which had amended the 1914 Act, the hundis in question could not  be admitted in evidence in view of the provision of  S. 35  proviso  (a)  of the Marwar Stamp  Act,  1947,  even  on payment of duty and penalty and the appellant could not take advantage  of  S.  36 of the 1947 Stamp  Act,  because  ’the admission of the two hundis was a pure mistake as the  Trial Court  had lost sight of the 1947 Stamp Act and  the  appeal Court  could  go behind the orders of the  Trial  Court  and correct the mistake made by, thAt Court. Held, that once the Court, rightly or Wrongly decided to 43 334 admit  the document in evidence, so far as the parties  were concerned,  the  matter  was  closed.   The  court  had   to judicially determine the matter as soon as the document  was tendered in evidence and before it was marked as an  exhibit in  the  case, and once the document had been marked  as  an exhibit and the trial had proceeded on that footing s. 36 of

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the  Marwar  Stamp  Act, 1947,  came  into  operation,  and, thereafter, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order was not one of those judicial orders which are liable  to  be revised or reviewed by the same  court  or  a court of superior jurisdiction. Ratan Lal v. Dau Das, I.L.R. [1953] Raj. 833, disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3 of 1958. Appeal  from the judgment and decree dated October 8,  1956, of the Rajasthan High Court in Civil Regular Appeal No. 1 of 1953. S.   T. Desai and B. P. Maheshwari, for the appellants. N.   C. Chatterjee and H. P. Wanchoo, for the respondent. 1961.  April 25.  The Judgment of the Court was delivered by SINHA,  C. J.-The substantial question for determination  in this appeal is whether or not the two hundis sued upon  were admissible  in evidence.  The learned Trial Judge held  that they  were, and in that view of the matter decreed the  suit in full with costs and future interest, by his judgment  and decree dated September 26, 1952.  On appeal, the High  Court of  Rajasthan at Jodhpur, by its judgment and  decree  dated October  8,  1956  allowed  the  appeal  and  dismissed  the plaintiffs’  suit.  Each party was directed to bear its  own costs  throughout.   The High Court  granted  the  necessary certificate under Art. 133(1)(a) of the Constitution.   That is how the appeal is before us. It  is only necessary to state the following facts in  order to appreciate the question of law that has to be  determined in  this appeal.  The defendant-respondent is said  to  have owed  money to the plaintiffs, the appellants in this  case, during the course of their business as commission agents for the defendant, at 335 Bombay.   Towards the payment of those dues,  the  defendant drew two mudatti hundis in favour of the plaintiffs, for the sum  of  35  thousand rupees, one  for  20  thousand  rupees payable  61 days after date, and the other for  15  thousand rupees payable 121 days after date.  The plaintiffs endorsed the two hundis to G. Raghunathmal Bank and asked the Bank to credit their account with the amount on realisation.  On the date  of their maturity, the Bank presented those hundis  to the  defendant,  who dishonored them.   Thereupon  the  Bank returned the hundis to the plaintiffs.  As the defendant did not  pay  the amount due under those documents  on  repeated demands  by  the  plaintiffs, they  instituted  a  suit  for realisation  of  Rs. 39,615, principal  with  interest.   On those  allegations, the suit was instituted in the Court  of District Judge, Jodhpur, on January 4, 1949. It  is  not  necessary to set out  the  defendant’s  written statement  in  detail.   It  is enough  to  state  that  the defendant admitted the execution of the hundis, but  alleged that  they had been drawn for purchasing gold in future  and since the plaintiffs did not send the gold, the hundis  were not honoured or accepted.  It was denied that the  defendant owed  any amount to the plaintiffs or that the  hundis  were drawn  in payment of any such debt.  It was  thus  contended that the hundis were without consideration.  The most impor- tant  plea  raised by the defendant in bar of the  suit  was that  the hundis were inadmissible in evidence because  they had not been stamped according to the Stamp Law. On  those pleadings, a number of issues were joined  between

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the parties, but the only relevant issue was issue No. 2  in these terms:-               "Whether  the  two hundis, the  basis  of  the               suit,  being unstamped, were  inadmissible  in               evidence? (OD*)" (*which  perhaps are meant to indicate that the onus was  on the  defendant in respect of this issue).  It  appears  that the defendant led evidence first, in view of the fact  that the  onus lay on him.  He was examined as D.W.5, and in  his examination-in-chief he 336 stated, "I did not receive any gold towards, these hundis  I asked  them to return the hundis, but ’they did  not  return them., I had’ drawn the two hundis marked Ex.  P.’ I and Ex. P.  2.  They  are written in Roopchand’s hand.   I  did  not receive  any  notice  to honour  these  hundis."  His  other witnesses, D.Ws. 1, 2 and 4 were examined and cross-examined with reference to the terms of the hundis and as to who  the author  of the hundis was.  All along during the  course  of the  recording  of the evidence on behalf  of  the  parties, these hundis have been referred to as Ex.  P. I. and Ex.  P. 2. The conclusion of the learned Trial Judge on issue No.  2 was in these terms:-               "Therefore, in this case the plaintiff  having               paid  the penalty, the two documents  in  suit               having  been exhibited and numbered under  the               signatures  of the presiding officer of  court               and  the same having thus been  introduced  in               evidence  and  also referred to  and  read  in               evidence  by the defendant’s learned               counsel,  the  provisions of sec.  36  of  the               Stamp  Act, which are mandatory, at once  come               into play and the disputed documents cannot be               rejected  and excluded from evidence and  they               shall   accordingly  properly  form  part   of               evidence  on  record.   Issue No.  2  is  thus               decided against the defendant." The  suit  was  accordingly decreed with  costs,  as  stated above.   On appeal by the defendant to the High  Court,  the High  Court also found that the hundis were marked  as  Exs. P.  1 and P. 2, with the endorsement "Admitted in  evidence" and  signed by the Judge.  The High Court also  noticed  the fact  that when the hundis were executed in December,  1946, the  Marwar Stamp Act of 1914 was in force and ss. 9 and  11 of  the  Marwar  Stamp Act, 1914, authorised  the  Court  to realise the full stamp duty and penalty in case of unstamped instruments produced in evidence.  Section 9 further  provi- ded  that  on  the payment of proper  stamp  duty,  and  the required  penalty, if any, the document shall be  admissible in  evidence.   It was also noticed that when the  suit  was filed in January, 1949, stamp duty and penalty were paid  in respect  of  the hundis, acting upon the  law,  namely,  the Marwar Stamp Act, 1914.                             337 The  High Court also pointed out that the’ documents  appear to  have been Admitted in evidence because the  Trial  court lost sight of the fact that in 1947 a new Stamp Act had come into  force  in  the former State of  Marwar,  amending  the Marwar  Stamp  Act  of 1914.  The "new law  was,  in  terms, similar  to  the Indian Stamp Act.  The High  Court  further pointed out that after the coming into effect of the  Marwar Stamp  Act,  1947  the  hundis in this  case  could  not  be admitted  in evidence, in view of the provisions of  s.  35, proviso (a) of the Act, even on payment of duty and penalty. With reference to the provisions of s. 36 of the Stamp Act.,

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the  High  Court  held that the plaintiffs  could  not  take advantage of the provisions of that section because, in  its opinion,  the  admission  of  the two  hundis  ’was  a  pure mistake’.  Relying upon a previous decision of the Rajasthan High Court in Ratan Lal v. Dan Das (1), the High Court  held that as the admission of the documents was pure mistake, the High  Court,  on appeal, could go behind the orders  of  the Trial Court and correct the mistake made by that Court.   In our opinion, the High Court misdirected itself, in its  view of the provisions of s. 36 of the Stamp Act.  Section 36  is in these terms:-               "Where  an  instrument has  been  admitted  in               evidence, such admission shall not, except  as               provided in section 61, be called in  question               at any stage of the same suit or proceeding on               the  ground that the instrument has  not  been               duly stamped." That  section  is  categorical  in its  terms  that  when  a document has once been admitted in evidence, such  admission cannot be called in question at any stage of the suit or the proceeding  on the ground that the instrument had  not  been duly stamped.  The only exception recognised by the  section is  the class of cases contemplated by s. 61, which  is  not material  to the present controversy.  Section 36  does  not admit  of  other  exceptions.  Where a question  as  to  the admissibility of a document is raised on the ground that  it has  not been stamped, or has not been properly stamped,  it has to be decided then and there when the (1)  I.L.R. [1953] Raj. 833. 338 document  is tendered in evidence.  Once the Court,  rightly or  wrongly, decides to admit the document in  evidence,  so far  as  the parties are concerned, the  matter  is  closed. Section  35  is in the nature of a penal provision  and  has far-reaching effects.  Parties to a litigation, where such a controversy is raised, have to be circumspect and the  party challenging  the  admissibility of the document  has  to  be alert  to see that the document is not admitted in  evidence by  the  Court.  The Court has to judicially  determine  the matter  as soon as the document is tendered in evidence  and before  it is marked as an exhibit in the case.  The  record in this case discloses the fact that the hundis were  marked as Exs.  P. 1 and P. 2 and bore the endorsement ’admitted in evidence’  under  the signature of the Court.   It  is  not, therefore,  one  of those cases where a  document  has  been inadvertently admitted, without the Court applying its  mind to  the question of its admissibility.  Once a document  has been  marked  as an exhibit in the case and  the  trial  has proceeded all along on the footing that the document was  an exhibit  in  the case and has been used by  the  parties  in examination and cross-examination of their witnesses, s.  36 of the Stamp Act 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. In our opinion, the High Court has erred in law in  refusing to act upon those two hundis which had been properly proved- if  they  required any proof, their  execution  having  been admitted  by the executant himself.  As on the finding,%  no other  question  arises, nor was any other  question  raised before  us by the parties, we accordingly allow the  appeal, set  aside the judgment and decree passed by the High  Court

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and restore those of the Trial Court, with costs throughout. Appeal allowed.                             339