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Samurailatpam Jugeswar Sharma Vs. Krishna Kumar Sharma - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 16 of 1977
Judge
ActsStamp Act, 1899 - Sections 36
AppellantSamurailatpam Jugeswar Sharma
RespondentKrishna Kumar Sharma
Appellant AdvocateW. Kulbidhu Singh, Adv.
Respondent AdvocateA. Nilamani Singh, Adv.
DispositionPetition dismissed
Excerpt:
.....singh, the learned counsel appearing for the petitioner, submits that since the same document was earlier filed before the same court and was refused admission on the ground that it was a promissory note and was insufficiently stamped, with an endorsement to that effect on the back of the document, the procedure under section 35 (proviso) was not applicable to it and the procedure of impounding and curing by payment of deficit stamp as well as penalty was palpably illegal and the learned court ought to have ignored this curing and ought to have rejected it considering the earlier endorsement that it was a promissory note and could not be cured. that being the position, according to the law laid down by the supreme court, section 36 is clearly applicable and consequently the order..........sc 1393). 9. in the instant case the admitted facts are that when the document was considered for admission objections were raised and were considered and rejected, which means that the trial court judicially decided its admissibility and thereafter marked it as an exhibit, and witnesses were examined and cross-examined on it. that being the position, according to the law laid down by the supreme court, section 36 is clearly applicable and consequently the order cannot be called in question either by the trial court or any court of superior jurisdiction in appeal or revision in any stage of the same suit or proceeding on the ground that the instrument has not beenj duly stamped. 10. in the result, the petition is dismissed. the rule is discharged. the parties are left to bear their own.....
Judgment:

K.N. Saikia, J.

1. In this Civil Revision Application under Section 115 of the Civil P. C., the petitioner impugns the order dated 5-8-1977 passed by the learned subordinate Judge I, Manipur in O. S. (Money) No. 31 of 1974/26/76/4 of 1977, marking Ext. A/1, stated to be a promissory note, in evidence.

2. The plaintiff-respondent filed the said instrument dated 3-5-1972 earlier before the same Court for admission in evidence, but on objection being raised by the defendant-petitioner on the ground that it was insufficiently stamped as a promissory note, it was not admitted in evidence by an order dated 3-9-1975 with a finding that since the document was a promissory note and insufficiently stamped it could not be cured under the provisions of Section 35 of the Stamp Act. Thereafter, the plaintiff-respondent withdrew the document from the Court and purported to cure it through the procedure of impounding, and after the deficit stamp and penalty were paid and Collector's certificate obtained, it was re-filed for admission; and in spite of objection from the petitioner the learned Court passed the impugned order and marked the document as Ext. A/1. It is stated that the suit has since been decreed and an appeal is pending therefrom in the lower Court.

3. Mr. W. Kulabidhu Singh, the learned counsel appearing for the petitioner, submits that since the same document was earlier filed before the same Court and was refused admission on the ground that it was a promissory note and was insufficiently stamped, with an endorsement to that effect on the back of the document, the procedure under Section 35 (proviso) was not applicable to it and the procedure of impounding and curing by payment of deficit stamp as well as penalty was palpably illegal and the learned Court ought to have ignored this curing and ought to have rejected it considering the earlier endorsement that it was a promissory note and could not be cured. The learned counsel submits that in spite of vehement objection to the admission, the learned Court admitted and marked it as exhibit and witnesses were examined on it.

4. Mr. A. Nilamani Singh, the learned counsel appearing for the opposite party, points out that this document was marked as Ext. A/1 not on 5-8-1977 but earlier on 22-6-1977, whereafter witnesses were examined and cross-examined on it. Consequently, the learned counsel submits, that the bar of Section 36 of the Stamp Act is attracted in

this case and this petition is not maintainable.

5. The question to be decided, therefore, is whether this revision petition is barred under Section 36 of the Stamp Act? Section 36 of the Stamp Act provides :

'36, Admission of instrument where not to be questioned -- 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.'

6. The law as to when the bar of Section 36, Stamp Act, is attracted has new been almost settled. In AIR 1961 SC 1655 (Javer Chand v. Pukhraj Sura-na), their Lordships of the Supreme Court, were pleased to observe :

'Where a question as to the admissi-bility of a document is raised on the ground that it has not been stamped or has not been properly stamped, 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. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 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.'

7. In AIR 1978 SC 1393, their Lordships of the Supreme Court reiterated it as follows :

'When the document is tendered in evidence by the plaintiff while in witness box and objection is raised by the defendants that the document is inadmissible in evidence as it is not duly stamped or for want of registration, it is obligatory upon the trial Judge to apply his mind to the objection raised and to decide the objection in accordance with law.

xx xx xx

If after applying mind to the rival contentions the trial Court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in ques-

tion at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.'

8. When, instead of deciding the objection instantly, the decision is postponed and the document is marked subject to objection, it will be obligatory upon the Court to decide the objection before the suit is finally disposed of and Section 36 will be applicable after the decision. When the document has been inadvertently admitted without the Court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 (AIR 1978 SC 1393).

9. In the instant case the admitted facts are that when the document was considered for admission objections were raised and were considered and rejected, which means that the trial Court judicially decided its admissibility and thereafter marked it as an exhibit, and witnesses were examined and cross-examined on it. That being the position, according to the law laid down by the Supreme Court, Section 36 is clearly applicable and consequently the order cannot be called in question either by the trial Court or any Court of superior jurisdiction in appeal or revision in any stage of the same suit or proceeding on the ground that the instrument has not beenj duly stamped.

10. In the result, the petition is dismissed. The rule is discharged. The parties are left to bear their own costs.


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