Judgment Case ID: 1263

Judgment:
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 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 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	 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 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) I.L.R. 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	 I.L.R. 	 disapproved.