1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.Civil Writ Petition No. 2784/2008 (Bherunath Vs. Rajendra & Anr.) ......... Date of Order : 30/07/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Sandeep Saruparia for the petitioner. Mr. N.K.Rastogi for the respondent. BY THE COURT By the instant writ petition, the petitioner who is defendant in a suit for Specific Performance of the Contract pending before Additional District Judge, Gulabpura, district Bhilwara (for short 'the trial court' hereinafter) has challenged the order dated 31.03.2008 passed by the trial court whereby issue No.3 being the issue purely involving law point came to be decided by the trial court against the petitioner. I have heard learned counsel for the parties. Carefully gone through the order impugned. It is contended by learned counsel for the petitioner that the trial court fell in error in deciding the issue against the 2 petitioner defendant. He has relied on a decision of this Court in Madan Lal Vs. Ram Swaroop 1996 DNJ (Raj.) 745 and in Khuraj and Anr. Vs. Moti Lal and Ors. 1998 DNJ (Raj.) 168. Mr. N.K.Rastogi, learned counsel for the respondent plaintiff has supported the order impugned and relied on a four Judges decision of Hon'ble Supreme Court in Javer Chand and Others Vs. Pukhraj Surana, AIR 1961 SC 1655. In Madan Lal Vs. Ram Swaroop (supra), the plaintiff non-petitioner sought to introduce a document in course of his oral testimony. The question of admissibility of document, a purported deed of partition which was unstamped and un- registered, in evidence came to be considered and this Court did not incline to interfere in the matter but directed the Court below to decide the admissibility of the document for whatever worth it is, looking to the entire surrounding circumstances which created the said document and which had the effect of continuity thereafter in the light of the evidence already adduced in the case and decide upon its admissibility at the conclusion of the trial. In Khuraj & Anr. Vs. Moti Lal and Ors. (supra), the document under consideration was unregistered sale deed and this Court held that from the language of the document, it prima-facie appears to be a contract for sale and can be marked exhibit but mere exhibiting a document does not dispense with 3 its proof. In Javer Chand and Others Vs. Pukhraj Surana (supra), the Hon'ble Supreme Court observed as under:- “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 provided 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. 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, the High Court held that the plaintiffs could not take advantage of 4 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 reported in Ratan Lal Vs. Daudas, ILR (1953) Raj. 833 (AIR 1954 Raj. 173), 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.” While considering Section 36 of the Stamp Act, Hon'ble Supreme Court held that the 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 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, 5 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 view of the decision of Hon'ble Supreme Court referred herein above, in my view, no case for interference invoking extra-ordinary jurisdiction under Article 226 of the 6 Constitution of India is made out. The writ petition is therefore, dismissed. However, it would be open for the petitioner to challenge the finding on the issue No.3 in appeal. No order as to costs. (H.R.PANWAR), J. rp 7 S.B.CIVIL MISC. STAY PETITION NO. 5060/08 IN S.B.CIVIL WRIT PETITION NO. 2784/2008 Date of Order : 30/07/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Sandeep Saruparia for the petitioner. Mr. N.K.Rastogi for the respondent. Since the writ petition itself has been dismissed, the stay petition also stands dismissed. (H.R.PANWAR), J. rp