A. Sambasiva Rao, A.C.J.
1. A question under Section 36 of the Stamp Act arises for consideration in this Letters Patent Appeal which is preferred against the decision of our learned brother Jayachandra Reddy, J. in A. A. O. No. 212/75 dismissing it.
2. The question arises in the following manner. The respondent in this appeal filed a suit to recover a sum of Rs. 3,785 on a document which he claimed to be a promissory note. The defence set up by the appellants, who was the defendant in the suit, was among other things, that the suit promissory note was not supported by consideration. Then both sides adduced and completed their evidence. While adducing the evidence on the plaintiff's side, the document, which was the basis for the suit, was marked as Ex. A-1 after a witness proved it. The necessary endorsements as required by Rule 4 of Order 13, C. P. C. were made and the judicial officer initialled on it. Thus it came to be marked as an exhibit. After both sides thus completed their evidence, the present appellants filed an additional written statement raising a new point that the document was not a promissory note but was a bond and as such it was insufficiently stamped. His objection therefore was that the document was inadmissible in evidence. An additional issue was also framed on this aspect of the matter. Without going into the other merits or contentions of the parties, the trial Court held that the document was not a promissory note but a bond and was insufficiently stamped and for that reason it was inadmissible in evidence. In that view, it dismissed the suit. The plaintiff preferred an appeal to the District Court which allowed the appeal holding that under Section 36 of the Stamp Act the admissibility of the document as Ex. A-1 cannot be called in question since it had already been admitted. So, the appellate Court allowed the appeal and remanded the suit to the trial Court, for disposal on its merits. This time the defendant preferred A. A. O. No. 212/75 to this Court challenging this decision of the learned District Judge. Jayachandra Reddy, J. agreed with the lower appellate Court and dismissed the A. A. O. In his view, Section 36 would preclude the reopening of the question of admissibility of Ex. A-1 which had already been admitted in evidence.
3. Sri M. S. K. Sastry for the defendant- appellant presses this appeal on the ground that Section 36 of the Stamp Act has no application since when the document was originally marked as Ex. A-1 there was no conscious and judicial determination of the question. The Court mechanically marked the document as Ex. A-1 since there was no question of insufficiency of stamp before it at that time. Section 36 gives the benefit only when an instrument has been 'admitted in evidence', and according to Sri Sastry, unless there is a conscious and judicial determination of the objection raised, it cannot be said that the Court has admitted a document in evidence. Since that was not done in this case, Section 36 does not come into operation.
4. We are not prepared to accept the contention of Sri Sastry. Section 35 of the Stamp Act states that instruments, which are not duly stamped, are inadmissible in evidence. However, as an exception to that prohibition, it is enacted in Section 36 that 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 proceedings on the ground that the instrument has not been duly stamped. It is common ground that Section 61 of the Stamp Act has no application to the circumstances of the present case. So, this matter can be considered without any reference to Section 61.
5. Undoubtedly Section 36 lays down a very wholesome and desirable rule of procedure that once an instrument has been admitted in evidence, that admissibility cannot be questioned or doubted at any stage of the suit or proceeding on the ground that the instrument has not been duly stamped. If this protection is not given it would result in great dislocation of the entire process of law. There shall be a final stage as to the admissibility of a document and once the Court, after being satisfied that it is properly proved and is admissible in evidence, marks it and admits it and in proof thereof makes endorsements as required by Order 13, Rule 4 of C. P. C., then the same question of its admissibility cannot be raked up once again on the ground that it has not been duly stamped. Without this desirable rule of procedure, there would be constant obstructions and impediments in the process of adjudication in proceedings.
6. Now Sri Sastry says that Ex. A-1 in this case has not been admitted in evidence within the meaning of Section 36 since when it was marked, there was no conscious and judicial determination as the present question. It would be futile to argue that the Court should have anticipated and decided the question as to the insufficiency of stamp on the instrument when nobody, including the appellant himself as defendant, noticed it. On the other hand, when the document was proved and marked it was thought to be a promissory note was not supported by consideration. He adduced evidence to show that there was no consideration in support of the promissory note. Thus everybody proceeded on the impression that it was a promissory note.
7. Then, the only consideration before the Court at that time was whether the instrument was sufficiently stamped as a promissory note and whether it was admissible in accordance with the other provisions of the law. There was formal proof of the document because one of the witnesses produced it. After applying its mind to all the circumstances, the Court admitted the document after making the requisite endorsements on the instrument and putting its initials. Therefore, there was conscious and judicial determination by the Court that the document was admissible. It cannot be said, by any stretch of imagination, that the Court marked the document without applying its mind. It did consider all the questions that were placed before it at that time. Simply because the defendant discovered something defective at the very late stage of the arguments, he cannot be permitted to say that the Court admitted the instrument without applying its mind and giving its judicial determination.
8. Sri Sastry invites our attention first to the decision of the Supreme Court in Javer Chand v. Pukhraj Surana ( : 2SCR333 ). The record in the case before the Supreme Court disclosed that the hundis were marked and bore the endorsement 'admitted in evidence' under the signature of the Court. Therefore, the Supreme Court held that it was not one of those cases where a document had been inadvertently admitted without the Court applying its mind to the question of its admissibility. It proceeded to observe that 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. This decision of the Supreme Court is on all fours with the facts of the present case.
9. Reliance is placed on the decision of a Division Bench of the Madras High Court in Attili Venkanna v. Parasuram Byas (1929) 56 Mad LJ 633 : (AIR 1929 Mad 52). There, the facts were that a clerk of the Court stamped the usual endorsement as to the production and admission in evidence of the document and the District Munsif's initials were affixed to the endorsement by a Rubber Stamp. Whether that was done by the presiding officer's own hand or by some one else did not appear from the record. Later the District Munsif felt that the instrument was not duly stamped and held that it was inadmissible in evidence. On the facts of the case, the Division Bench held that the Judicial Officer did not apply his mind before admitting the document in evidence. It was observed that placing of a stamp by a third person could not amount to initialling by a Judge and it was not clear as to whether the stamp was affixed by the Judge himself or by a third person. Therefore, the facts of that case are altogether different.
10. Likewise, the facts in Veeramullu v. Komaraiah ((1964) 2 Andh WR 468) are different. In that case the Courts below held that the promissory note was not properly stamped and therefore it was not admissible in evidence. All the same, the trial Court thought that though it was not admissible to prove the terms of the document, it could be used in evidence for collateral purposes. This view was repelled by Gopal Rao Ekbote, J. (as he then was) and we are in respectful agreement with the learned Judge.
11. Now, as we have stated, it is manifest that the admission of the document was not by inadvertence but was done after conscious and judicial application of the Court's mind and the procedure laid down. Consequently Section 36 of the Stamp Act would apply to the case. The admissibility of Ex. A-1 cannot be called in question at any time in the suit or in the appeal or in revision preferred against that. The view taken by our learned brother affirming that of the learned District Judge is, therefore, right and the remand made by the lower appellate Court to the trial Court for adjudication of the suit on its merits is quite justified.
12. In the result, the Letters Patent Appeal is dismissed with costs.
13. C. M. P. No. 7095/76 :- Now that the main appeal is dismissed, the stay petition also is dismissed. The trial Court shall now expeditiously proceed to dispose of the suit.
14. Appeal and Stay
15. Petition dismissed.