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
section T Desai and B P Maheshwari for the appellants
N C Chatterjee and H P Wanchoo for the respondent
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 article 1331a 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 39615 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 DW5 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 exhibit P  I and exhibit P 2
They are written in Roopchand s hand
I did not receive any notice to honour these hundis
 His other witnesses DWs 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 exhibit P I and exhibit 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 sections 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 section 35 proviso a of the Act even on payment of duty and penalty
With reference to the provisions of section 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 vs 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 section 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 section 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 ILR 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 section 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
Appeal allowed


Summary:
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 sections 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 section 35 proviso a of the Marwar Stamp Act 1947 even on payment of duty and penalty and the appellant could not take advantage of section 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 section 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 vs Dau Das ILR  disapproved