Javer Chand & Ors Vs. Pukhraj
Surana  INSC 186 (25 April 1961)
25/04/1961 SINHA, BHUVNESHWAR
P.(CJ) 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)
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.
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 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.  Raj. 833,
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
S. T. Desai and B. P. Maheshwari, for the
N. C. Chatterjee and H. P. Wanchoo, for the
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 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
With reference to the provisions of s. 36 of
the Stamp Act., 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.  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 and restore those of the
Trial Court, with costs throughout.