IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 351 of 1989 Date of Decision: 30.8.2011 Ratia. ....... Appellant through Shri Kabir Sarin, Advocate. Versus Narayania. ...... Respondent through Shri H.N.Mehtani, Advocate. CORAM: HON'BLE MR.JUSTICE VIJENDER SINGH MALIK .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... VIJENDER SINGH MALIK,J. This regular second appeal is directed against the judgment and decree dated 17.12.1988 passed by learned Additional District Judge, Bhiwani (hereinafter referred to as `the first appellate court') vide which the judgment and decree dated 27.7.1988 of learned Sub Judge IInd Class, Bhiwani (referred to hereinafter as `the trial court') have been set aside and the suit of the plaintiff-appellant has been dismissed with costs. The appellant had brought a suit for recovery of R.S.A.No.351 of 1989 -2- .... Rs.5573.27 Ps. on the basis of a pronote and a receipt allegedly executed in his favour by the defendant-respondent, Narayania on 18.7.1981 after taking a loan of Rs.4100/- with an undertaking to repay the same with interest at the rate of 1% per annum. It was claimed that the amount of Rs.4100/- was advanced by the appellant to the respondent who had executed the pronote and receipt in the presence of a witness named Mangalia. The appellant also averred that the respondent had undertaken to repay the loan amount on demand along with interest which he did not do when demand was made upon him and hence, claiming Rs.4100/- as principal amount and the remaining amount as interest, the suit was instituted for recovery of Rs.5573.27 Ps. The respondent resisted the suit denying his borrowing any amount from the appellant on 18.7.1981. He also denied having executed any pronote and receipt in favour of the appellant. He claimed, on the other hand, that he had advanced sums of Rs.8000/-, Rs.1000/- and Rs.450/- to the appellant who had also received some other articles from him. It was further claimed that dues of the same were not paid by the appellant. The respondent had pleaded that it was the plaintiff-appellant who was liable to pay various amounts to him. The pronote and receipt were alleged to be forged and fabricated documents, created in connivance with Mangalia. Denying the other R.S.A.No.351 of 1989 -3- .... averments of the appellant, the suit was prayed to be dismissed. On the appellant's filing replication, learned trial court settled the following issues:- 1. Whether the defendant obtained a sum of Rs.4100/- as loan from the plaintiff on 18.7.81 and executed the pronote and the receipt in token thereof?OPP 2. Whether the defendant agreed to pay interest, if so, at what rate and to what amount?OPD 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the plaintiff is estopped from filing the present suit by his act and conduct?OPD 5. Whether the pronote and receipt are fabricated and without consideration as alleged?OPD 6. Whether the suit is barred by limitation?OPD 7. Relief. Taking the evidence of the parties, learned trial court, vide judgment and decree dated 27.7.1988, decreed the suit of the appellant with costs for recovery of Rs.5573.27 Ps. along with interest at the rate of 12% per annum for the period for which the suit remained pending and at the rate of 6% per annum from the date of decree till the date of realisation of the decretal amount. R.S.A.No.351 of 1989 -4- .... Feeling aggrieved, the defendant-respondent filed an appeal which was heard by learned first appellate court which, vide judgment and decree dated 17.2.1988, reversed the judgment and decree of learned trial court and dismissed the suit of the plaintiff- appellant with costs on the ground that the pronote and the receipt have been insufficiently stamped and that the revenue stamps on the pronote have not been properly cancelled and, therefore, the pronote could not be admitted in evidence nor could it be acted upon. Hence, the plaintiff-appellant has come up before this court in second appeal. I have heard Shri Kabir Sarin, learned counsel for the appellant and Shri H.N. Mehtani, learned counsel for the respondent. I have also gone through the record of the case. Learned counsel for the appellant has submitted that the suit could not be dismissed by learned first appellate court on the ground that the pronote and the receipt were insufficiently stamped or the stamps pasted on these documents were improperly cancelled. According to him, cancellation of stamps and insufficiency of stamps are the aspects which could not be questioned before the first appellate court. He has contended that once the pronote and the receipt were admitted in evidence by the trial court, such admission could only be called in question as provided under section 61 of the Indian Stamp R.S.A.No.351 of 1989 -5- .... Act,1899 (for short, `the Act'). According to him, the conditions required by section 61 for questioning the admission of the documents in evidence were not available in this case and, therefore, the same could not be held inadmissible by learned first appellate court. He has drawn my attention in this regard to a judgment of this Court in R.S.A.No.2298 of 1986 – Hari Ram (dead) through LR Versus M/S Hakumat Rai Harbhajan Lal Soap Merchants; Mandi Ahmedgarh and others, decided on 30.9.2010. On the other hand, learned counsel for the respondent took me through the judgment under appeal and has submitted that learned first appellate court was not unjustified in taking the view that the pronote and the receipt were inadmissible in evidence for being insufficiently stamped and for improper cancellation of the stamps affixed thereon. According to him, the appeal is liable to be dismissed as no substantial question of law arises for determination by this court. Having considered the rival submissions, I am of the opinion that the substantial question of law that arises in this appeal is, “whether the first appellate court was justified in holding that the pronote and the receipt were inadmissible in evidence?” It is a case where the appellant himself appeared in support of his case as PW1. He had brought the original pronote and R.S.A.No.351 of 1989 -6- .... receipt and proved photostat copies of the same as Exhibits P1 and P2 respectively. The admissibility of these documents was objected to and the objection was not decided by the court of first instance, either in the course of recording of the evidence or by way of a separate order. A perusal of the judgment of learned trial court dated 7.7.1988 would also show that admissibility of the documents has not been decided by it. Though the aspect of insufficiency of stamps and inadmissibility of the documents in evidence was noticed in paragraph 10 of the judgment, yet, it has just been mentioned that the document has been properly stamped. Therefore, this aspect was open to the defendant-respondent to be challenged before the first appellate court which has rightly entertained the arguments on that aspect. The original pronote and the receipt are now on the record as Exhibits P7 and P7/1 respectively. Section 12 of the Act which deals with the cancellation of adhesive stamps, is extracted below:- “12. Cancellation of adhesive stamps.- (1) (a) Whoever affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any person shall, when affixing such stamp, cancel the same so that it cannot be used again; and (b) Whoever executes any instrument on any paper R.S.A.No.351 of 1989 -7- .... bearing an adhesive stamp shall, at the time of execution, unless such stamp has been already cancelled in manner aforesaid, cancel the same so that it cannot be used again. (2) Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall so far as such stamp is concerned, be deemed to be unstamped. (3) The person required by sub-section (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner.” A reading of the afore-quoted provision of law shows that no particular mode of cancellation of adhesive stamps has been prescribed in this section. The only requirement to be complied with in cancellation of the stamps is that they should be rendered unfit for reuse. Though sub-section (3) of section 12 of the Act mentions an effective method of cancellation of adhesive stamps, yet it is not the only method of the cancellation thereof which is evident from the fact that the Legislature has added the following clause thereto, “or in any other effectual manner.” In the case in hand, the pronote has two revenue stamps R.S.A.No.351 of 1989 -8- .... of 20 Ps. each. The name of respondent, Naryania appears on one stamp and some other words which look “Sonva” appear on the other stamp. No part of the writing descends on the paper of the pronote on which the stamps have been affixed. Whatever is written on the revenue stamps remains on the stamps only. This type of cancellation can not prevent lifting of the stamps from any surface and use of the same on any other surface. So, the cancellation of the revenue stamps affixed on the pronote is not proper and when the revenue stamps used on the pronote are not properly cancelled, the document will not be taken as carrying those stamps and it has to be treated as an unstamped document. The possibility of bringing of the revenue stamps affixed on the pronote from some other surface is made strong by Mangalia, PW2, who has stated in his cross-examination that tickets were affixed by him by using wet flour on the lower surface of the same. He has stated that no gum was used. Revenue adhesive stamps carry dry gum on their lower surface and they are just to be made moist to affix the same on the paper. The statement of Mangalia, PW2 shows that there was no such gum on the lower surface of the revenue stamps which is possible when the revenue stamp is being used for the second time. For the fact that the court of first instance did not pass R.S.A.No.351 of 1989 -9- .... any order admitting the pronote in evidence, the provisions of sections 36 and 61 of the Act would not apply and the ratio of Hari Ram's case (supra) would not stand attracted to the facts of the present case. The substantial question of law is consequently answered against the appellant. The appeal consequently appears to have no merit and is dismissed. August 30,2011 ( VIJENDER SINGH MALIK) “SCM” JUDGE